                                                                  2018 WI 11

                  SUPREME COURT                 OF   WISCONSIN
CASE NO.:                2016AP2214
COMPLETE TITLE:          Madison Teachers, Inc.,
                                    Plaintiff-Respondent,
                              v.
                         James R. Scott, Chairman and Records Custodian,
                         Wisconsin Employment Relations Commission,
                                    Defendant-Appellant.

                                   ON BYPASS FROM THE COURT OF APPEALS

OPINION FILED:           February 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           December 5, 2017

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Dane
   JUDGE:                Peter Anderson

JUSTICES:
   CONCURRED:
   DISSENTED:            A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
                         J. (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:


       For      the    defendant-appellant,       there    were   briefs    (in   the
court    of       appeals)    filed    by   Steven   C.    Kilpatrick,     assistant
attorney general, and Brad D. Schimel, attorney general.                       There
was an oral argument by Steven C. Kilpatrick.


       For the plaintiff-respondent, there was a brief (in the
court of appeals) filed by Susan M. Crawford and Pines Bach LLP,
Madison.        There was an oral argument by Susan M. Crawford.


       An amicus curiae brief was filed on behalf of the Wisconsin
Freedom         of     Information     Council,      the    Wisconsin      Newspaper
Association,           and   the    Wisconsin   Broadcasters      Association     by
Dustin B. Brown, James A. Friedman, and Godfrey & Kahn, S.C.,
Madison.




                              2
                                                                                2018 WI 11
                                                                        NOTICE
                                                          This opinion is subject to further
                                                          editing and modification.   The final
                                                          version will appear in the bound
                                                          volume of the official reports.
No.        2016AP2214
(L.C. No.        2015CV3062)

STATE OF WISCONSIN                                    :             IN SUPREME COURT

Madison Teachers, Inc.,

                 Plaintiff-Respondent,
                                                                             FILED
       v.                                                                FEB 6, 2018
James R. Scott, Chairman and Records Custodian,                           Diane M. Fremgen
                                                                       Acting Clerk of Supreme
Wisconsin Employment Relations Commission,                                      Court

                 Defendant-Appellant




       APPEAL from an order of the Circuit Court for Dane County.

Reversed.

       ¶1        PATIENCE       DRAKE    ROGGENSACK,       C.J.       This    case     comes

before us on a bypass petition filed by the records custodian
and chairman of the Wisconsin Employment Relations Commission

("WERC"),        James     R.   Scott.      Scott    appeals      a   decision       of   the

circuit court1 that granted summary judgment to Madison Teachers,

Inc.       ("MTI")    on    its    claim   that     the    public     records      law    was

violated.2        The circuit court also awarded MTI statutory damages,

attorneys fees and costs.


       1
           The Honorable Peter C. Anderson of Dane County presided.
       2
           See    Wis.     Stat.    § 19.37(1)(a)         (2015-16).         All further
                                                                              (continued)
                                                                           No.     2016AP2214



    ¶2        MTI    had    made    repeated       requests,        at     various       times

during the 2015 certification elections, for names of Madison

Metropolitan School District (the "School District") employees

who had voted as of those dates.                     WERC denied MTI's requests

based    on   Scott's      determination          that    while     this       election    was

ongoing, the public interest that elections remain free from

voter intimidation and coercion outweighed the public interest

in favor of openness of public records.

    ¶3        One issue is presented in this appeal:                            whether the

public     interest        that     elections        remain         free        from     voter

intimidation        and    coercion      in   this       certification         election     is

sufficient to outweigh the public interest in favor of openness

of public records.             Because we conclude that Scott                      lawfully

performed     the     balancing      test     in    concluding          that    the     public

interest in elections free from voter intimidation and coercion

outweighs the public interest in favor of openness of public

records,      we     reverse      the    circuit         court.         Accordingly,        no

attorneys fees are due MTI under the provisions of Wis. Stat.

§ 19.37(2).

                                    I.   BACKGROUND

    ¶4        From    November      4    through         November       24,     2015,     WERC

conducted      the    annual       certification          election       for     collective

bargaining representatives of the School District's employees



references to Wisconsin             statutes       are     to     the    2015-16       version
unless otherwise noted.


                                              2
                                                                   No.   2016AP2214



pursuant to Wis. Stat. § 111.70(4)(d)3.b.3             WERC contracted with

the   American      Arbitration    Association     (the     "Association")      to

provide     technological       services      necessary     to     conduct     the

election.4     With the Association's support, voting occurred via

telephone     and    internet     for   20    days,   and    the     Association

electronically       maintained    data      for   votes    that     were    cast.

According to the contract between WERC and the Association, the

      3
          Wisconsin Stat. § 111.70(4)(d)3.b. states:

      Annually, the commission shall conduct an election to
      certify    the   representative   of   the    collective
      bargaining unit that contains a general municipal
      employee.    The election shall occur no later than
      December 1 for a collective bargaining unit containing
      school district employees and no later than May 1 for
      a   collective   bargaining  unit   containing   general
      municipal employees who are not school district
      employees.      The   commission   shall   certify   any
      representative that receives at least 51 percent of
      the votes of all of the general municipal employees in
      the collective bargaining unit.    If no representative
      receives at least 51 percent of the votes of all of
      the general municipal employees in the collective
      bargaining unit, at the expiration of the collective
      bargaining agreement, the commission shall decertify
      the current representative and the general municipal
      employees shall be nonrepresented.       Notwithstanding
      sub. (2), if a representative is decertified under
      this subd. 3.b., the affected general municipal
      employees may not be included in a substantially
      similar collective bargaining unit for 12 months from
      the date of decertification.      The commission shall
      assess and collect a certification fee for each
      election conducted under this subd. 3.b.            Fees
      collected under this subd. 3.b. shall be credited to
      the appropriation account under s. 20.425(1)(i).
      4
       In total, there were 301 union certification elections in
November 2015, involving nearly 60,000 municipal employees.


                                        3
                                                                         No.     2016AP2214



Association was required to email election results to WERC no

later than one business day after the election concluded.

    ¶5       Notably, under Wis. Stat. § 111.70(4)(d)3.b., in order

to be certified as the elected representative of the bargaining

unit, a labor organization must receive the votes of at least 51

percent of the total number of employees in the bargaining unit.

Therefore, a non-vote in the election is for all intents and

purposes a "no" vote.            Pursuant to § 111.70(1)(e), certification

elections are conducted by secret ballot.

    ¶6       One    week      prior    to    the    start   of     the   certification

election, MTI wrote to Scott stating that it intended to submit

requests pursuant to Wis. Stat. § 19.35(1) for records of the

names   of    the    School      District's        employees     who     had    voted      at

specific     points      during       the    election.         MTI     wrote     that       it

"wish[ed]     to    assure     you    that    MTI    will    not     engage     in    voter

coercion     or    any   other    illegal        election    practices         during      the

upcoming election.            MTI is fully committed to exercising its

First Amendment and statutory rights within the law."

    ¶7       On November 10, 2015, MTI submitted the first of its

requests, seeking names of employees, by bargaining unit, who

had voted as of that date.                  MTI requested that the records be

delivered "as soon as possible, but not later than 5:00 p.m.,

November     16."        On   November      16,    2015,    Scott      advised       MTI    in

writing that its request was denied for three reasons:                               first,

because WERC utilized the Association, a third-party vendor to

collect    votes,     the     Commission      did    not    possess      the    requested


                                             4
                                                                           No.     2016AP2214



documents; second, because the annual certification election is

conducted by secret ballot, disclosure of the names of employees

who    had    voted    would     violate     the   secrecy    of     the    ballot;       and

third, because the common law balancing test weighed in favor of

"maintaining        the     secrecy    of    the   ballot    and     of    avoiding        the

potential for voter coercion while balloting is ongoing . . . ."

Scott was aware of a complaint submitted to WERC by the Racine

Unified School District, alleging that voters had been coerced

and harassed into voting during the 2014 annual certification

elections.5

       ¶8      MTI submitted a second request on November 17, 2015,

for names of employees, by bargaining unit, who had voted as of

that       date.      MTI    requested      that   Scott     respond       "as     soon    as

possible, but not later than 5:00 p.m., November 20."                                     This

request was also denied in writing on November 30, 2015.

       ¶9      The election ended at noon on November 24, 2015.                            At

3:26 p.m. on that day, MTI submitted a third request to WERC,

requesting         names    of   all     employees     who     had        voted     in    the

certification         election.             WERC   provided        those         names,    by

bargaining unit, at 12:37 p.m. the following day, November 25.

       5
       An affidavit subsequently filed in this action revealed
that Scott was aware that the Racine Unified School District had
filed a complaint alleging union representatives had approached
three teachers, asked if they had voted in the certification
election,   and  urged   them  to   vote   immediately  in   the
representative's presence using the representative's laptop.
The complaint was dismissed without investigation because the
conduct, even if substantiated, would not have affected the
outcome of the election.


                                              5
                                                             No.   2016AP2214



Scott concluded that the public interest in maintaining openness

of   public    records   was   satisfied   by   disclosing   the   requested

lists immediately after the elections were over.

      ¶10     On November 30, 2015, MTI filed a complaint pursuant

to Wis. Stat.      § 19.37(1)(a),6 seeking an order for mandamus,

punitive damages, attorneys fees and costs, based on Scott's

refusal to release voting records in response to MTI's November

10 and November 17 requests.        On December 1, 2015, MTI filed an

ex parte motion, citing Wis. Stat. § 801.02(5), for an order

shortening the time for filing an answer or other responsive

pleadings from 45 days to 20 days.              The circuit court granted

the ex parte motion on December 3.7             On December 4, 2015, MTI

served the complaint, its ex parte motion and the resulting

order on Scott.

      6
          Wisconsin Stat. § 19.37(1)(a) states:

      Enforcement and penalties.      (1) Mandamus.    If an
      authority withholds a record or a part of a record or
      delays granting access to a record or part of a record
      after a written request for disclosure is made, the
      requester   may  pursue   either,  or  both,   of  the
      alternatives under pars. (a) and (b).

           (a) The requester may bring an action for
      mandamus asking a court to order release of the
      record.   The court may permit the parties or their
      attorneys to have access to the requested record under
      restrictions or protective orders as the court deems
      appropriate.
      7
       The Honorable Juan B. Colas of Dane County presided.
Scott filed a judicial substitution request on December 8, 2015,
and on December 11, 2015, the Honorable Peter C. Anderson was
appointed.


                                      6
                                                                   No.      2016AP2214



    ¶11     On    December   11,     2015,     Scott    filed     a    motion     and

supporting brief to reconsider and vacate the court's December 3

order.    A hearing was conducted on December 15, at which the

court granted Scott 45 days to answer.               Scott timely answered.

    ¶12     On    December   22,    2015,    WERC's     legal    counsel,       Peter

Davis, emailed the Association, stating:                 "Whenever convenient

can you tell me if it [is] still possible to identify who had

voted as of noon Nov 10 and noon Nov 17 in the various Madison

Schools/Madison Teachers units.            If it is possible, can you send

me that info[] unit by unit[?]"              The Association provided those

records to WERC, which WERC provided to MTI during discovery.

    ¶13     MTI     and   Scott     filed      cross-motions          for    summary

judgment.        Scott argued, among other things, that the public

interest in non-disclosure of the names of those who had voted

when the election was ongoing outweighed the public interest in

disclosure at that time and therefore, MTI did not have a legal

right to the records it sought.                Meanwhile, MTI argued that

Scott failed to overcome the strong presumption in favor of

openness of public records.           Upon completion of briefing, the

court granted MTI's motion and denied Scott's.

    ¶14     At the hearing on summary judgment, MTI also sought

punitive damages, costs, and attorneys fees.                    A second hearing

was held on these issues, and the court modified its previous

order    denying     punitive      damages     and     granting       MTI    $100.00

statutory damages, $41,462.50 attorney fees and $301.35 costs.




                                       7
                                                                              No.        2016AP2214



       ¶15    Scott appealed and, following initial briefing, Scott

petitioned for bypass, which we granted.                               We now reverse the

circuit court.

                                         II.   DISCUSSION

                                   A.    Standard of Review

       ¶16    We   review          a    record   custodian's        decision        to    deny   a

public records request independently.                            It is the duty of the

records custodian to specify the reasons for not disclosing a

public record, and we decide whether those reasons outweigh the

public       interest        in    disclosure         as   a     matter      of   law.         See

Democratic Party of Wis. v. DOJ, 2016 WI 100, ¶9, 372 Wis. 2d

460,    888    N.W.2d        584.         When    a     records    custodian        employs      a

balancing test, it is the custodian's burden to show that the

public       interest        favoring          denial      of    the    requested          record

outweighs the public interest favoring disclosure.                                Id. (citing

John K. MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014

WI App 49, ¶14, 354 Wis. 2d 61, 848 N.W.2d 862).

                                   B.    Public Records Law

       ¶17    Wisconsin's public records law is set forth in Wis.

Stat. § 19.31, et seq.                   Wisconsin's public records law requires

that,    absent     a    statutory,            common      law    or    overriding         public

interest in denying access, the public has the right "to inspect

certain      documents        within       the   possession        of   a    state       entity."

Voces De La Frontera v. Clarke, 2017 WI 16, ¶17, 373 Wis. 2d

348, 891 N.W.2d 803.                   The public records law "serves one of the

basic     tenets        of        our     democratic       system       by    providing          an


                                                 8
                                                     No.   2016AP2214



opportunity for public oversight of the workings of government."

Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428 (1996)

(citing Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 433-34, 279

N.W.2d 179 (1979)).     When evaluating a public records request,

we keep in mind that Wisconsin has a "presumption of open access

to public records."     Osborn v. Bd. of Regents of Univ. of Wis.

Sys., 2002 WI 83, ¶13, 254 Wis. 2d 266, 647 N.W.2d 158 (citing

Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342

N.W.2d 682 (1984)); see also Wis. Stat. § 19.31 (providing that

"it is . . . the public policy of this state that all persons

are entitled to the greatest possible information regarding the

affairs of government and the official acts of those officers

and employees who represent them."); cf. Leann Holcomb & James

Isaac, Comment, Wisconsin's Public Records Law:     Preserving the

Presumption of Complete Public Access in the Age of Electronic

Records, 2008 Wis. L. Rev. 3, 515.

    ¶18   The public's right to access public records is very

strong, but it is not unrestricted.     Voces De La Frontera, 373

Wis. 2d 348, ¶18.     "The strong presumption of public access may

give way to statutory or specified common law exceptions, or if

there is an overriding public interest in keeping the public

record confidential."     Kroeplin v. DNR, 2006 WI App 227, ¶13,

297 Wis. 2d 254, 725 N.W.2d 286 (citation omitted); see also

Hathaway, 116 Wis. 2d at 397 ("[T]he general presumption of our

law is that public records shall be open to the public unless

there is a clear statutory exception, unless there exists a


                                 9
                                                                          No.     2016AP2214



limitation       under     the   common        law,       or    unless    there        is    an

overriding        public    interest      in     keeping          the    public        record

confidential.").8          In    other    words,       "[b]ecause        the     denial      of

public access is generally contrary to the public interest,"

access may be denied only in limited circumstances.                              Kroeplin,

297 Wis. 2d 254, ¶12 (citing Kailin v. Rainwater, 226 Wis. 2d

134, 142, 593 N.W.2d 865 (Ct. App. 1999)).

     ¶19    In determining whether there is an overriding public

interest in keeping a requested record confidential when there

is no statutory exception to provision of the record, the record

custodian balances competing public interests that bear on the

release of the requested record.                 Milwaukee Journal Sentinel v.

DOA, 2009 WI 79, ¶¶55-56, 319 Wis. 2d 439, 768 N.W.2d 700.                                  That

is, the custodian balances the public interest in nondisclosure

against    the    public    interest      in    disclosure.             Id.,    ¶55.        The

balance    is      accomplished      through          a        case-by-case      analysis.

Because    the      interests     asserted        in       denying       disclosure         are

discrete     to     each    case,    "blanket          exceptions         from    release"

generally are not forthcoming.                  Id., ¶56.            Stated otherwise,

"the custodian must determine whether the surrounding factual

circumstances create an 'exceptional case' not governed by the




     8
       The legislature has codified some of the public records
that are subject to public inspection and some that are
statutorily exempt.    To that end, Wis. Stat. § 19.36 lists
thirteen statutory exemptions, none of which are applicable
here.


                                          10
                                                                            No.    2016AP2214



strong presumption of openness."                         Hempel v. City of Baraboo,

2005 WI 120, ¶63, 284 Wis. 2d 162, 699 N.W.2d 551.

       ¶20    The public interest balancing test considers "whether

disclosure        would     cause     public       harm    to    the    degree     that    the

presumption         of    openness      [of    public       records]       is     overcome."

Democratic Party of Wis., 372 Wis. 2d 460, ¶11; see also Osborn,

254 Wis. 2d 266, ¶15.

                            C.    Secret Ballot Elections

                                 1.   General principles

       ¶21    As     a    general      matter,      voting        may   occur     by   voice

acclamation, the raising of hands in a meeting or by secret

ballot, depending on the statutory directive or lack thereof.

In regard to the matter before us, Wis. Stat. § 111.70(1)(e)

requires      that       certification       elections      be    conducted       by   secret

ballot.

       ¶22    All 50 states have employed the secret ballot method

of voting to limit voter intimidation during elections.                                Burson

v. Freeman, 504 U.S. 191, 206 (1992).                        As explained in Burson,

the history of election regulation in the United States shows

that   voter       intimidation       and     coercion      are    long-standing        evils

that election regulations sought to prevent.                        Id.

       ¶23    The    right       to   vote    in    certification         elections       is   a

statutory right; yet, Burson is instructive in the matter before

us because of its exposition of the policies that underlie the

use of secret ballots.                 In Burson, a political party worker

sought       to    enjoin        enforcement        of     Tennessee       statutes       that


                                              11
                                                                               No.    2016AP2214



prohibited        solicitation       of     votes        and     display         of    campaign

materials within 100 feet of entrances to polling places on

election day.       Id. at 193-94.            The party worker claimed that the

statutory    regulation         violated        her      right   to       communicate        with

voters, in contravention of her First Amendment rights.                                   Id. at

194-95.      Tennessee contended that its statutes were narrowly

drawn to serve compelling state interests of preventing voter

harassment and intimidation.                 Id.      Further, Tennessee contended

that the campaign-free zone "protects the right to vote in an

election conducted with integrity and reliability."                              Id. at 199.

     ¶24    In      concluding         that        the      Tennessee            statute      was

constitutional,          even   though        it      was      not    a     content-neutral

regulation of speech, the Supreme Court reviewed the history of

the secret ballot method of voting in the United States and how

it   has    had     an     immediate      and       positive         effect      in    limiting

intimidation and coercion of voters.                      Id. at 202-06.              The Court

concluded    by      explaining        that        the    contest         over    Tennessee's

election regulation involved "the exercise of free speech rights

[in] conflict[] with another fundamental right, the right to

cast a ballot in an election free from the taint of intimidation

and fraud."         Id.     at 211.        On      balance, the Court said that

removing     the     opportunity          for      intimidation           of     voters      must

prevail.    Id.

                           2.   Certification elections

     ¶25    2011         Wisconsin     Act      10       made    various          changes      to

collective       bargaining      for      most       public      employees.            Act    10


                                              12
                                                                        No.    2016AP2214



requires annual certification elections, which are administered

by WERC.     Wis. Stat. § 111.70(1)(c) and (e).                   Prior to Act 10,

collective bargaining units for municipal employees also were

established through WERC's recognition of employee votes.                             See

Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶19, 358 Wis. 2d

1, 851 N.W.2d 337.             Before Act 10, members of a collective

bargaining unit were allowed to select a labor organization as

their representative when a majority of the votes cast were for

a particular labor organization, even when those votes were not

equivalent to a majority of the employees in the bargaining

unit.   Id., ¶62.         The elected union remained the representative

unless 30 percent of members of the collective bargaining unit

asked for a decertification election at which the union was

defeated.    Id.

     ¶26    Act 10 changed much of that.                     It required a labor

organization that was representing a municipal bargaining unit

to   succeed      in    annual       certification      elections       in    order   to

continue.      Id., ¶63.         WERC was to certify any representative

that received at least 51 percent of the votes of all of the

employees in the collective bargaining unit.                      Id.    Accordingly,

a non-vote constituted a "no" vote.                    If no labor organization

received     51    percent     of     the    votes     of   all    members      of    the

bargaining        unit,       WERC     was        to   decertify        the      current

representative         when    the     then-existing        collective        bargaining

agreement ended and the members of the collective bargaining

unit became unrepresented.             Wis. Stat. § 111.70(4)(d)3.b.


                                             13
                                                                           No.    2016AP2214



       ¶27   Act 10 specifically prohibited employees from coercing

or     intimidating      other     employees         in    regard     to    joining,     or

refraining       from   joining,        a    labor   organization.            Wis.     Stat.

§ 111.70(3)(a)1.         Having certification elections that are free

of   intimidation       and   coercion         was   not    a   new   goal       for   labor

organization       elections       in       Wisconsin.      See     WERC    v.    City    of

Evansville, 69 Wis. 2d 140, 164, 230 N.W.2d 688 (1975).

       ¶28   In City of Evansville, the process then required to

hold a certification election had been followed and an election

date was established.            Id. at 146.          Prior to the election, the

City's agents coerced employees by offering benefits to those

who did not support a union and threatened the loss of benefits

to those who voted to support the union.                        Id. at 147.         We held

the City's actions were prohibited practices within the meaning

of Wis. Stat. § 111.70(3)(a)1.                 Id. at 156.

       ¶29   Under      current     law,       one   of     the     primary      goals   of

certification elections is to give employees an unintimidated

voice in deciding who, if anyone, will be their representative.

Wis.     Stat.    § 111.70(3)(a)1.                 Consistent       with     that      goal,

certification elections are conducted by secret ballot to lessen

intimidation of voters.                 § 111.70(1)(e); see also Burson, 504

U.S. at 211.

       ¶30   Mechanisms       to    lessen         voter    intimidation          when    an

election is carried out electronically over 20 days cannot be

the same as they were in Burson when paper ballots were used at

designated polling places.               For example, the 100 foot restricted


                                              14
                                                                           No.     2016AP2214



zone around the polling place that the Supreme Court approved in

Burson as a narrowly tailored restriction to meet the compelling

state    interest    of   reducing          voter    intimidation         would    have   no

effect in the election at issue here because members of the

bargaining unit could vote from the workplace, from home or from

another      location    over    a    20-day       period.        However,       preventing

voter intimidation and coercion are as important in a statutory

certification election as they were in an election of the type

reported in Burson.

                                  D.     Application

       ¶31    As evidenced above, we are tasked with independently

weighing two important public interests.                       On the one hand, there

is a general presumption that public records shall be open to

the    public    unless       there    is    a    clear       statutory    exception,      a

limitation      under     the    common          law,    or     unless     there     is   an

overriding      public        interest       in     keeping      the      public     record

confidential.       Hathaway, 116 Wis. 2d at 397.                  On the other hand,

there is a clearly expressed right to vote in certification

elections that are free from voter intimidation and coercion.

Wis. Stat. § 111.70(3)(a)1.; see also Burson, 504 U.S. at 211.

       ¶32    MTI contends that because voting was ongoing, those

who had not yet voted could not be treated as a firm "no" vote

and,    therefore,      the    lists    of       those   who    had    voted     would    not

violate the secrecy of the ballot by revealing the votes of

anyone.       MTI's argument misses the point of why disclosure of




                                             15
                                                                   No.     2016AP2214



the names of those who had voted affects the important public

interest that underlies the use of secret ballots.

       ¶33   Let us explain.        Throughout the election, MTI remained

free    to   provide   truthful     information      to   all   members     of     the

bargaining unit that bore on the advisability of electing MTI as

the    exclusive   representative.          However,      giving   MTI    lists     of

employees who had voted at various dates before the election

process was concluded, through simple deletion of voter names

from the list of all members of a bargaining unit, also would

give MTI names of all who had not voted by those dates.                       Those

non-voting     employees    could    then   become     individual        targets    of

MTI's most forceful efforts because if they did not vote by the

conclusion of the election, MTI may have been unable to secure

"yes" votes from 51 percent of the members in the bargaining

unit and thereby fail in its certification efforts.

       ¶34   When elections are conducted over a period of time and

voting occurs in many locations, there is no physical boundary

by which voter intimidation can be regulated as there was in

Burson.        Therefore,     preventing       voter      intimidation       during

elections conducted by phone and email, as occurred here, is

challenging.       Given MTI's repeated requests for the names of

those who voted before the election concluded, it is entirely

possible that those employees who had not yet voted would become

subject to individualized pressure by MTI of a type that MTI

could not exert when speaking to all members of the bargaining

unit collectively.


                                       16
                                                                                   No.     2016AP2214



       ¶35       As the history underlying the use of secret ballots

teaches, a major purpose of secret ballots is to protect "the

fundamental right" to cast votes in elections that are "free

from       the   taint    of     intimidation."                Burson,     504     U.S.    at     211.

While       Burson     did     not   involve          a   statutory        right     to    vote     in

certification           elections          as    is       presented        here,     the        public

interest         in     certification            elections          that     are         free     from

intimidation and coercion is evidenced by the requirement that

those elections be conducted by secret ballot and free from

prohibited            practices.                Wis.       Stat.        §§ 111.70(1)(e)            and

111.70(3)(a)1.

       ¶36       Intimidation in the WERC certification election was a

concern.         Scott had received detailed and specific complaints of

past       coercion      in    other     certification           elections.9             Complaints

included:          a union representative directing an employee to a

computer and coercing her to vote for recertification; another

employee being repeatedly asked whether she had voted; and a

third employee witnessing employees being similarly pressured to

vote.

       ¶37       Each individual voter has a fundamental right to cast

his    or    her      vote     without     intimidation            or   coercion.          WERC     is

charged with conducting fair and accurate annual certification

elections,         free       from   the    taint         of   voter     intimidation.             The

public has a significant interest in fair elections, where votes

       9
       The Racine Unified School District had filed a complaint
of which Scott was aware. See supra, ¶7.


                                                  17
                                                                      No.   2016AP2214



are   freely     cast       without       voter   intimidation        or    coercion.

Accordingly, the public interest in elections that are free from

intimidation and coercion outweighs the public interest in favor

of open public records under the circumstances presented in the

case before us.             Scott's denial of MTI's requests for voter

names during the course of the certification election evidences

the lawful balance of public interests presented here.

                                   III.   CONCLUSION

      ¶38    One issue is presented in this appeal:                     whether the

public      interest        that    elections       remain     free     from    voter

intimidation     in    this    certification        election    is    sufficient   to

outweigh the public interest in favor of openness of public

records.     Because we conclude that Scott lawfully performed the

balancing     test     in    concluding      that    the     public    interest    in

elections free from voter intimidation and coercion outweighs

the public interest in favor of openness of public records, we

reverse the circuit court.                Accordingly, no attorneys fees are

due MTI under the provisions of Wis. Stat. § 19.37(1)(a).

      By the Court.—The order of the circuit court is reversed.




                                           18
                                                                               No.     2016AP2214.awb


       ¶39        ANN WALSH BRADLEY,                 J.     (dissenting).            The majority

pays       lip    service      to    the    important         policy       behind       the    public

records          law.     It    proclaims            that    "[t]he       public       records    law

'serves one of the basic tenets of our democratic system by

providing an opportunity for public oversight of the workings of

government'".             Majority op., ¶17.                  Heralding the policy that

"all persons are entitled to the greatest possible information

regarding          the     affairs         of    government,"             it     reaffirms       that

Wisconsin has a "presumption of open access to public records."

Id.

       ¶40        Such exaltation seems to be all hat and no cattle.

Despite           Wisconsin's         longstanding               public        policy      favoring

transparency,            for   the    third          time   in    three        years    this     court

continues to undermine our public records law.1                                  Yet again, this

court overturns a lower court decision favoring transparency of

records to which the public is rightfully entitled.                                      Once more

we must ask, "[w]hat has the majority achieved with its opinion

grounded in speculative, abstract, and unsubstantiated fears?"
Democratic          Party      of    Wis.       v.    DOJ,       2016     WI    100,     ¶123,    372

Wis. 2d 460, 888 N.W.2d 584 (Abrahamson, J., dissenting).

       ¶41        This time the majority undermines the presumption of

open access to public records by imputing an unsupported and


       1
       See Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, 373
Wis. 2d 348, 891 N.W.2d 803 (4-2 decision, Ann Walsh Bradley,
J., dissenting, joined by Abrahamson, J.); Democratic Party of
Wis. v. DOJ, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584 (5-2
decision, Abrahamson, J., dissenting, joined by Ann Walsh
Bradley, J.).


                                                      1
                                                                         No.     2016AP2214.awb


nefarious purpose to the records requests based on nonexistent

facts.       Without supportive evidence in the record, it speculates

that by providing the requested records to Madison Teachers,

Inc.       (MTI),        employees        who        had    not    yet     voted       in     the

recertification election "could then become individual targets

of MTI's most forceful efforts."                      Majority op., ¶33.

       ¶42    Neither the majority nor the records custodian points

to any evidence of voter intimidation or coercion by MTI in this

recertification           election.         Rather,         this   concocted      concern      is

based solely on one uninvestigated and unsubstantiated complaint

from Racine County, involving a different union, in a different

election, in a different year, that did not involve a public

records request.

       ¶43    Not    only      does   the       majority      base   its       conclusion      on

facts that do not exist, it also fails to inform the reader of

existing      facts       in   the        record      and    existing      public      records

precedent      that       support     a    contrary         conclusion.         See    John    K.

MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014 WI App
49, ¶¶23, 26, 354 Wis. 2d 61, 848 N.W.2d 862 (explaining that a

possibility         of    threats,        harassment         or    reprisals       cannot      be

accorded      significant        weight         in    the    balancing     test       when    the

custodian fails to establish it is reasonably probable such harm

would occur).2            Nevertheless, the majority relies on conjecture

       2
       See also Milwaukee Journal Sentinel v. DOA, 2009 WI 79,
¶¶57, 63, 319 Wis. 2d 439, 768 N.W.2d 700 (concluding that
safety concerns about retaliation or harassment of DOC employees
by incarcerated persons are not unique concerns and therefore do
not preclude the disclosure of names of corrections employees).


                                                 2
                                                                       No.   2016AP2214.awb


about generalized concerns of voter coercion in denying this

records request.

      ¶44    Unlike       the    majority,        I    conclude      that    the   records

custodian    Scott        failed      to    overcome     the     presumption       of   open

access to public records.                   The unfounded speculation that the

records might be used for improper purposes does not outweigh

the strong public interest in opening the records to inspection.

      ¶45    Accordingly, I respectfully dissent.

                                              I

      ¶46    The majority engages in selective vision.                             It sees

facts that do not exist, while at the same time failing to

recognize existing facts of record.

                                              A

      ¶47    Left       with    non-existent          facts,   the     majority    instead

speculates.        It imputes an unsupported and nefarious purpose to

the records requests.                 Ultimately it concludes that "[g]iven

MTI's repeated requests3 for the names of those who voted before

the   election         concluded,      it    is   entirely       possible     that      those
employees        who    had     not   yet     voted      would    become     subject      to

individualized pressure by MTI of a type that MTI could not

exert     when    speaking       to   all     members     of     the   bargaining       unit

collectively."          Majority op., ¶34 (emphasis added).


      3
       When  left   without   supportive  facts,  the   majority
apparently resorts to exaggeration.     It states that MTI made
"repeated requests" during the 2015 certification elections for
the names of those who had cast ballots. Majority op., ¶¶2, 34.
In fact, MTI made just two public records requests during the
2015 recertification election.


                                              3
                                                                         No.     2016AP2214.awb


             ¶48     Absent from the record is evidence that providing the

requested records presented a reasonable probability of voter

intimidation or coercion:

            There    is   no   evidence     in    the      record    that     the   Wisconsin

             Employment         Relations     Commission             (WERC)      opened       an

             investigation about MTI engaging in such acts here.

            The record is devoid of any evidence of a verbal or written

             complaint     of     voter     intimidation        or     coercion        in   this

             recertification election.

            The majority cannot point to any allegation in the record

             that MTI has ever acted improperly in this or any other

             recertification election.

             ¶49     Left with this void, the majority instead relies on an

unsubstantiated allegation from Racine County that voters there

"had been coerced and harassed into voting."                            Majority op., ¶7.

The Racine allegations, however, involved not only a different

location, but also a different union, in a different election,

in       a    different     year,    that    did      not    involve    a     public    records
request.             WERC did not investigate the Racine allegations, and

accordingly those allegations were never substantiated.

             ¶50     In short, it is difficult to imagine a scenario where

there is less evidence of potential harm in the record than

here.          One would expect the highest court of this state to rely

on more than such unrelated and unsubstantiated allegations for

its assertion that the risk of voter intimidation or coercion

here was great enough to overcome the strong presumption of open
access to public records.                 It does not.

                                                  4
                                                             No.     2016AP2214.awb


                                        B

    ¶51    A public record that is available to one, is available

to all.    Kraemer Bros., Inc. v. Dane Cty., 229 Wis. 2d 86, 102,

599 N.W.2d 75 (Ct. App. 1999).           It has long been recognized that

"[n]either   the     identity     of    the    requester     nor    the   reasons

underlying     the    request   are     factors     that     enter     into     the

balanc[ing   test]."      State    ex    rel.    Ledford     v.    Turcotte,    195

Wis. 2d 244, 252, 536 N.W.2d 130 (Ct. App. 1995); Levin v. Bd.

of Regents of Univ. of Wis. Sys., 2003 WI App 181, ¶¶14-18, 266

Wis. 2d 481, 668 N.W.2d 779.

    ¶52    These guiding principles are rooted in the language of

the statutes.        Wisconsin Stat. § 19.35(1)(i) explains that a

records custodian may not refuse to release a public record

"because   the   person   making       the    request   is   unwilling     to   be

identified or to state the purpose of the request."                  Likewise, §

19.35(1)(a) provides that "any requester has a right to inspect

any record."     See also Linda de la Mora, The Wisconsin Public

Records Law, 67 Marq. Law Rev. 65, 69 (1983) (explaining that in
Wisconsin, as in most jurisdictions, the motive of the requester

is irrelevant to the question of whether to grant access to

public records).

    ¶53    The identity of the requester and the purpose of the

request should not matter here.               Nevertheless, if the majority

is going to erroneously superimpose its own speculative motive

upon the requester, it should at least mention existing facts of

record that support a contrary conclusion.              It fails to do so.



                                        5
                                                                           No.     2016AP2214.awb


          ¶54    In    providing      context,        counsel      for   MTI     explained     at

oral argument that "the only opportunity that the public has for

oversight         of    the    WERC's        election     administration             is   through

public records.               There is a strong public interest in ensuring

that the recertification elections that are conducted by the

WERC are transparent and open to ensure the integrity of those

elections."

          ¶55    The annual elections for public employees to select

representatives           for     purposes         of   collective         bargaining        were

previously            conducted       in     person.        They     are       now    conducted

electronically and employees vote either by phone or computer.

MTI      asserts       that    what        was   formerly    an     open     and     observable

government process is now closed.                         It contends that the only

opportunity that the public has for oversight of WERC's election

administration is through public records.                          MTI explains that the

need for oversight is revealed by the facts of record.

          ¶56    However,       the        majority     omits      these     facts.          WERC

acknowledged            various       voter       complaints        during         MTI's     2015
recertification           election,          including      that    an     eligible       voter's

name was not in the system and a failure to receive confirmation

that a vote had been counted.                     Absent from the majority opinion

is       the    fact    that    Scott        specifically       acknowledged          receiving

various complaints about:

         A voter who was blocked from voting because she was told

          she had already voted;

         A voter who had submitted a ballot but did not receive
          confirmation that the vote was submitted;

                                                  6
                                                                     No.    2016AP2214.awb


     A voter's name that was missing from the eligible voter

      list, and;

     A voter who needed a new access code to submit a ballot.

      ¶57    When speculating about the intent behind these records

requests, the majority also ignores the record evidence that MTI

advised WERC that it "w[ould] not engage in voter coercion or

any   other    illegal     election       practices          during        the     upcoming

election."     MTI explained at oral arguments that it made these

records requests to ensure WERC properly executed its election-

administration duties.

      ¶58    The majority fails to take into account these facts of

record that address the integrity of the election process.                                In

other words, when conducting the balancing test, the majority

erroneously    relies     solely    on    what     it       assumes    is    the     intent

behind the records requests.             It ignores the evidentiary record

which illustrates the importance of the policy behind the public

records     law:    it    "serves    one      of      the    basic     tenets       of   our

democratic     system     by   providing         an     opportunity          for     public
oversight of the workings of government."                     See majority op., ¶17

(citing Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428

(1996).

                                         II

      ¶59    The usual admonition is that if you do not have the

facts, then argue the law.           Conversely, if you do not have the

law, then argue the facts.          The majority has neither.

      ¶60    Here   the   majority       fails     to       recognize       and     address
recent precedent that impels a conclusion contrary to that of

                                          7
                                                                       No.    2016AP2214.awb


the majority.       In Erpenbach, the MacIver Institute sought copies

of correspondence sent to Senator Erpenbach's office related to

2011 Act 10.        354 Wis. 2d 61, ¶3.              Erpenbach agreed to provide

some   of    the   requested          documents,      but    redacted        the   personal

contact or identifiable information of the email senders.                                 Id.

He   justified     the     redactions         in   part     on   the    context      of   the

"nuclear environment" surrounding 2011 Act 10 debates, asserting

that the redactions would protect the e-mail senders against

unwanted threats, harassment or reprisals.                       Id., ¶¶5, 22, 23.

       ¶61   The        court        disagreed,      explaining          that      although

Erpenbach     identified          threats      and    harassment        levied      against

public officials and police officers, he did not identify actual

threats,     harassment         or    reprisals      against      concerned        citizens.

Id., ¶23.      Accordingly, it determined that Erpenbach failed to

demonstrate "a reasonable probability" that the email senders

"would be subjected to negative repercussions for sharing their

views regarding the legislation."                  Id.

       ¶62   Further,        the       court       observed       that       "Erpenbach's
generalized concern of possible threats, harassment or reprisals

could apply equally to any controversial public policy."                                  Id.,

¶24.    Indeed, the problem with relying on generalized concerns

of harm when conducting the balancing test is that such concerns

"would be in the eyes of the beholder," thus drawing courts into

the political fray.             Id., ¶39 (Brown, C.J., concurring).

       ¶63   Neither      Scott       nor   the    majority      contends       that   voter

intimidation       or    coercion       was   probable      during      MTI's      election.
Rather, Scott referred to a "potential" for voter coercion, and

                                               8
                                                                    No.        2016AP2214.awb


the majority suggests only that it is "entirely possible" that

MTI would exert pressure on potential voters.                             Majority op.,

¶34.

       ¶64    The mere possibility of voter intimidation or coercion

they    both    raise     falls      short       of   establishing         a     reasonable

probability that such harm would actually occur.                               Accordingly,

this concocted concern should not be afforded significant weight

in the balancing test.           See Erpenbach, 354 Wis. 2d 61, ¶26.

       ¶65    Ignoring          Erpenbach,            the        majority            instead

unpersuasively     relies       on   non-public        records      cases,       Burson    v.

Freeman, 504 U.S. 191 (1992) and WERC v. City of Evansville, 69

Wis. 2d 140,     230     N.W.2d 688     (1975).             In   Burson,       the   Supreme

Court upheld a restricted zone around polling places to preserve

the right to cast a ballot free from the taint of intimidation

or fraud.      504 U.S. at 211.         The concern examined in Burson was

the right to vote and the secrecy of the ballot.                               Id. at 198-

202.    Conversely, at issue here is a request for the list of the

names    of    those     who    have    cast      a    ballot      in     an     election——
information      that     has     historically         been      publicly        available.

Neither the right to vote nor the secrecy of the ballot is

implicated in these public records requests.

       ¶66    In Evansville, the analysis relied heavily on evidence

of actual threats or coercion, thus undermining the majority's

reliance on generalized conjecture.                   69 Wis. 2d at 153-157.               The

Evansville court examined extensive documentation of threats and

coercive communications to employees, including threats of loss
of benefits if employees engaged in union activities.                                Id.   In

                                             9
                                                                    No.     2016AP2214.awb


contrast, the record here lacks evidence of any actual coercion

or threats by MTI.

       ¶67      Finally,     when       conducting       the   balancing      test        the

majority takes into account that this recertification election

was    conducted       electronically,        rather      than     by     paper    ballot.

Majority op., ¶¶30, 34.                  According to the majority, "[w]hen

elections are conducted over a period of time and voting occurs

in many locations, there is no physical boundary by which voter-

intimidation can be regulated . . . ."                    Majority op., ¶34.

       ¶68      As MTI explained in its brief to the court, "[i]f WERC

had    conducted       an   election       that   required       employees        to     cast

ballots in person rather than electronically, MTI would have had

no    need   to    request        the   record,   but      could    simply        have   had

representatives present to observe the election firsthand, as

allowed under the WERC's administrative rules."4                          MTI's counsel

further explained at oral arguments that as a result of WERC's

change     in    the     administration      of   the      certification       election,

"what was formerly an open and observable government process is
now closed."

       ¶69      Unlike      the     majority,        I    would     not      permit         a

technological upgrade in the administration of an election to

shield the release of records to which the public is rightfully


       4
       Public union certification elections may be conducted "on-
site or by mail or by other means determined by the commission
to be fair and reliable."      Wis. Admin. Code § ERC 70.07(1).
"Any interested party may be represented by observers at on-site
election locations and at locations at which vote counts are
conducted." Wis. Admin. Code § ERC 70.07(3).


                                            10
                                                                   No.     2016AP2214.awb


entitled.          State ex rel. Milwaukee Police Ass'n v. Jones, 2000

WI App 146, ¶19, 237 Wis. 2d 840, 615 N.W.2d 190 ("A potent open

records law must remain open to technological advances so that

its statutory terms remain true to the law's intent.").

       ¶70    For the reasons stated above, I find unpersuasive the

majority's         determination        that     Scott   "lawfully       performed   the

balancing      test       in    concluding       that    the    public    interest    in

elections free from voter intimidation and coercion outweighs

the public interest in favor of openness of public records."

Majority op., ¶3.

                                               III

       ¶71    Applying the public records balancing test, I conclude

that       Scott    has    failed       to   overcome     the    strong    presumption

favoring the release of the requested records.                      See Linzmeyer v.

Forcey, 2002 WI 84, ¶¶10-12, 254 Wis. 2d 306, 646 N.W.2d 811.

"The duty of the [records] custodian is to specify reasons for

nondisclosure and the court's role is to decide whether the

reasons asserted are sufficient."                    Newspapers, Inc. v. Breier,
89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979).

       ¶72    Before this court, Scott provides two5 justifications

for    denying      these      public    records     requests:       to    protect   the
       5
       The first reason Scott provided to MTI in the denial
letters was that because WERC utilized a third-party vendor to
administer the election, WERC did not possess the requested
records.   Majority op., ¶7.   However, the circuit court stated
that "there was no attempt ever made to figure out if [Scott]
could produce the documents," a conclusion that counsel for
Scott conceded was accurate at oral arguments before this court.
Counsel for Scott further explained that he abandoned this
argument on appeal.     Accordingly, I do not consider it when
conducting the balancing test.

                                               11
                                                                     No.    2016AP2214.awb


secrecy     of    the    ballot   and    to    avoid     the   potential      for     voter

coercion during the election.             Majority op., ¶7.

      ¶73      Scott's first argument——that disclosure would violate

the     secrecy     of     the    ballot——rings          hollow.           Although    the

substantive votes on a ballot are confidential, the identity of

those who voted is not.6             Disclosing the names of those who have

cast a ballot prior to the conclusion of an election does not

violate the secrecy of the ballot.                     At oral argument, counsel

for Scott aptly explained the distinction between the act of

voting and the secrecy of the ballot:

      The act of voting is never secret. The ballot is
      certainly secret.  After an election is finished, no
      ballot will ever be disclosed. The act of not voting
      is a non-vote, but the Chairman decided that because
      of transparency after the election . . . The act of
      not voting is not given the same protection as the
      ballot.
      ¶74      Additionally, Scott undermined his purported concern

about protecting the secrecy of the ballot by releasing                                 the

names of those who voted after the conclusion of the election.

I agree with the circuit court that refusing to disclose the
names     of     voters     during      the        election    but    releasing       that

information after the election is "entirely contradictory" and


      6
       See Wis. Stat. § 6.36(1)(a)(1),(7)&(1)(b)1 (clarifying
that the official voter registration list in Wisconsin——
including the names and dates of any election in which the
elector votes——is a public record "accessible by any person");
Wis. Stat. § 6.79(2)-(3) (voters must state their names and
present proof of identity at polling places before they may
vote); Wis. Stat. § 7.41(1) (members of the public may observe
elections at polling places); see also Wis. Admin. Code § EL
3.50(2)-(3); Wis. Admin. Code § ERC 70.07(3).


                                              12
                                                                       No.    2016AP2214.awb


"paradoxical."             Accordingly, I afford Scott's purported concern

about maintaining the secrecy of the ballot little weight in the

balancing test.

       ¶75   Scott's         second    argument        that      denying     these    public

records requests was necessary to prevent "the potential for

voter     coercion          while     balloting       is        ongoing"     is   similarly

unconvincing.          As discussed above, Scott failed to provide any

evidence that MTI ever attempted to coerce or intimidate voters

in   this,      or   any     other,    recertification            election.       Moreover,

Scott     did        not     provide     any        substantiated          evidence     that

intimidation or coercion occurred in any other recertification

election in Wisconsin.                Thus, I conclude that Scott failed to

establish that it was reasonably probable that such harm would

occur in MTI's 2015 recertification election.

       ¶76   Ensuring the integrity of elections is an important

public interest.                 For that reason, the legislature empowered

WERC     with    tools       to     investigate       and       penalize     unfair    labor

practices, including voter coercion.                        See Wis. Stat. § 111.07.
The legislature did not, however, carve out an exception to the

public    records          law    permitting    WERC       to    withhold    records    that

historically have been accessible to the public.

       ¶77   In sum, I conclude that Scott failed to overcome the

presumption that all public records shall be open to the public.

Unlike the majority, I determine that the unfounded speculation

that the records might be used for improper purposes does not

outweigh the strong public interest in opening the records to



                                               13
                                                       No.    2016AP2214.awb


inspection.    Accordingly, I would affirm the circuit court's

determination that Scott violated the public records law.

    ¶78   For the foregoing reasons, I respectfully dissent.

    ¶79   I   am   authorized   to   state   that   Justice   SHIRLEY    S.

ABRAHAMSON joins this dissent.




                                     14
    No.   2016AP2214.awb




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