Wisconsin university and state DOJ drop FOIA case after accidentally releasing unredacted records


UPDATE: The state Department of Justice and the University of Wisconsin Board of Regents recently withdrew a motion over records they meant to censor before releasing to a University of Wisconsin-Oshkosh journalist.

The motion sought to force Alex Nemec, who was a reporter for UW Oshkosh’s student newspaper The Advance-Titan in 2017, to destroy personnel records he had recently received from the school. The school meant to redact sections of the files.

The Wisconsin Attorney General, Brad Schimel, had asked the court to demand Nemec either return or destroy the unredacted records he received, and disclose to the court the names of every person he discussed the records with.

Nemec destroyed the documents, but contested the rest of the order. Nemec’s attorney, Christa Westerberg, told the Milwaukee Journal Sentinel that attempts to prevent Nemec from sharing information were “an unprecedented intrusion on news reporting and private lives.”

“There is no question that Nemec legally obtained the information,” and the decision about how to use that information is a matter of “editorial control and judgment,” Westerberg told the Journal Sentinel. “It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with the First Amendment guarantees of a free press.”

The Oct. 26 notice to withdraw states that the University of Wisconsin Board of Regents is doing so because Nemec deleted the unredacted file.

“I’d assume that they came to their senses, that what they were asking for was a pretty tall order,” Nemec said about the decision by the university and state to withdraw their request.

Heather Lori, a UW System spokesperson, said their policy is not to comment on ongoing legal matters. The Wisconsin DOJ also declined comment.

Westerberg, a member of SPLC’s Attorney Referral Network, declined comment beyond what she told the Journal Sentinel.

Nemec, who has graduated and currently works for a local news organization in Wisconsin, said the process has been rewarding and educational. “This process has taught me a lot about FOIA,” Nemec said. “And what journalists are entitled to.“

Student Press Law Center Senior Legal Fellow Frank LoMonte views it as a win for the student press because it is a stark reminder that public universities cannot hide personnel information. “It’s never been the law,” LoMonte said. Public university employees are employees of the state and their actions are of public interest.

LoMonte, who has assisted Nemec since 2017 and recruited Westerberg to serve as his legal counsel, said it is impressive and important when student journalists stand up for the news media’s First Amendment rights.

The Advance-Titan, published an article on the redacted public records on the Oct. 24. Nemec said he is still waiting for the police report from the day Prof. Willis Hegan was removed from his classroom by police in 2017.


UPDATE: The Wisconsin Court of Appeals denied professor Will Hagen’s appeal to stop the release of his personnel records to now-graduated student journalist Alex Nemec.

The opinion, released on June 20, 2018, affirmed the original ruling from last year, which ordered the University of Wisconsin-Oshkosh to release Hagen’s records to Nemec.

According to the opinion released, “the presumption of public access…outweighed any public interest in nondisclosure.”

Nemec graduated in January 2018, and said he will be giving the records to the University of Wisconsin-Oshkosh student newspaper, the Advance-Titan, when they are released.

“I’m thrilled that the court decided to affirm the case and rule in my favor,” Nemec said in an email. “I’m eager to see what these records hold and finally get around to finding out the truth of what happened last year when I first reported on it. I think this case is an important one when it comes to records request and freedom of information and I’m happy the court ruled the right way.”

In an email, Nemec’s attorney, Christa Westerberg said the ruling “affirms the importance of public oversight of and access to information about public universities, which is of particular importance to student journalists who monitor these institutions.”

Editor’s note: Attorney Christa Westerberg was recruited by the Student Press Law Center to take on the case pro bono as part of our Attorney Referral Network.


UPDATE: Professor Will Hagen filed an appeal with the Wisconsin Court of Appeals on Oct. 17, just before his 20-day deadline was up. Lawyer Peter Culp, who represents Hagen, told The Advance-Titan that the case, “will now be reviewed and decided by a three-judge panel of the Wisconsin appellate court.”

The Advance Titan also reports Hagen is back on campus teaching.

9/26 /2017

WISCONSIN — A Winnebago County Circuit Court judge ruled against a professor who tried to stop the University of Wisconsin – Oshkosh from releasing his personnel records to student journalist Alex Nemec.

At a conference call hearing on Sept. 20, Judge Daniel Bissett denied Professor Will Hagen’s petition for a statutory injunction against the university, which would prevent the university from releasing documents pertaining to a closed investigation against him to The Advance-Titan Editor-in-Chief Nemec.

The judge also ordered the University of Wisconsin-Oshkosh to eliminate three redactions it proposed on the requested documents.

Attorney Aaron Dumas, representing Nemec, said the proposed redactions involved general references to the university accounting department, to Hager’s credential as a certified public accountant and to a statement the professor made to a classroom of students. He said the redactions were discussed at the hearing and entered into the minutes, which are now public record.

Earlier this year, Hagen was pulled out of a classroom mid-lecture and stopped teaching classes. Nemec tried to figure out why the professor had been removed. He asked the university for Hagen’s emails for the semester and university police reports. The university denied access to the records, claiming it couldn’t release information pertaining to an ongoing investigation.

Nemec followed up and asked for other personnel records, including any relating to a closed investigation against Hagen. After the university agreed to release some of the records, Hagen went to court to try to stop them.

Hagen argued releasing the records would violate his privacy as an employee, as the records contained personal and confidential matters. Nemec then filed a motion asking that the court dismiss Hagen’s request and order that the records be released.

On Sept. 28, the university submitted an order for the records, which was signed by the court. Hagen has 20 days to file an appeal with the Wisconsin Court of Appeals. The records cannot be released until after the 20 days have passed.

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The Student Press Law Center is a legal and educational nonprofit defending the rights of student journalists.