June 15, 2020 at 4:58 p.m.
In Assembly records case, court allows plaintiffs' attorneys access to records
Attorneys can prepare briefs but plaintiffs can't see documents
In Assembly records case, court allows plaintiffs' attorneys access to records
But the access is only so they can prepare briefs in the case, and the documents cannot even be shared with the plaintiffs themselves.
The plaintiffs are the Associated Press, Wisconsin State Journal, The Capital Times, the Milwaukee Journal Sentinel and Jonathan Anderson, the former Times reporter who is now a University of Minnesota doctoral candidate who researches public and press access to government-held information.
They sued the state Assembly and its chief clerk Patrick Fuller in March after their December records' requests for sexual harassment investigatory records pertaining to Gruszynski (D-Green Bay) were denied.
Their attorneys are Tom Kamenick of the Wisconsin Transparency Project and Christa Westerberg.
According to online court records, at a May 7 hearing the court allowed access to the records at issue but for the attorneys in the case to view only, not to be printed, disseminated, or copied for anyone other than the attorneys. The court also raised a question about a protective order regarding access to the records, and the plaintiffs' counsel was directed to submit a proposed protective order, which was filed June 5.
"(T)hat set of records is for attorneys' eyes only, for the purpose of preparing briefs to the court arguing why the records should be released, and cannot be made public or shared even with the plaintiffs themselves," Kamenick told The Times this week. "What was filed last week was a stipulation and proposed order for the court laying out the exact details of how that production should take place and how the records should be handled."
A status conference in the case is scheduled for July 15.
The Legislature has a long history of shielding from the public the records of its internal investigations into the potential misconduct of lawmakers, and, according to the Milwaukee Journal Sentinel, as late as 2017 both Assembly speaker Robin Vos (R-Rochester) and Assembly minority leader Gordon Hintz (D-Oshkosh) said they wanted such records kept secret.
In the current case, a legislative staffer filed a complaint, and a subsequent investigation substantiated the allegation. Gruszynski admitted making inappropriate comments to a female legislative staffer last October, but, despite his admission, the complaint and the detailed investigatory findings were not released, leading to the open records requests.
Soon after the incident surfaced, Gruszynski acknowledged he had made a mistake after drinking too much in a Madison bar.
"That evening, I made inappropriate comments to a female staffer and a sexual harassment claim was filed," he said. "I fully cooperated with human resources throughout this process. I want to apologize directly to that staffer and everyone that was involved that evening. My conduct was unprofessional and completely unacceptable."
Gruszynski said he had taken steps with his family to rebuild what he had broken and he had sought counseling for himself and his family. However, that didn't stop many Democrats from calling for his resignation, including the Assembly Democratic Leadership, led by state Rep. Gordon Hintz (D-Oshkosh).
"This week, the Legislative Human Resources Office (LHRO) completed a formal complaint resolution process into a complaint that Rep. Staush Gruszynski verbally sexually harassed a legislative employee while in an offsite location after work hours," the Democrats said in a statement. "This investigation found the complaint to be substantiated, and in violation of the policies laid out in the Wisconsin State Assembly policy manual."
The Democratic leaders said they were committed to preventing and stopping incidents of harassment whenever they occurred in the Legislature.
"It's our job to create a culture of accountability and to ensure members and legislative employees are held to a high standard of conduct," they stated. "Rep. Gruszynski failed to meet these standards with his actions. In recognition of the seriousness of this substantiated investigation, we have immediately stripped Rep. Gruszynski of his committee assignments. Rep. Gruszynski will no longer be caucusing with the Assembly Democrats, and should resign."
State Democratic Party of Wisconsin chairman Ben Wikler echoed that sentiment.
"We are grateful for leader Gordon Hintz's swift and thorough response to this troubling report of sexual harassment," Wikler said. "We have zero tolerance for sexual harassment at the Democratic Party of Wisconsin and expect elected leaders to hold themselves to the same standard."
Wikler said it was up to all people to create a culture of mutual respect and trust in the workplace and in communities.
"We are deeply disappointed that one of our own members contributed to this pervasive issue," he said. "In acknowledgment of the gravity of Rep. Gruszynski's actions, we echo leader Hintz's request that he step down."
Gruszynski not only refused to resign but is running for re-election.
The details
Despite Gruszynski admission, the complaint and the detailed investigatory findings have not been released, and in December the plaintiffs filed open records requests for the documents.
In his Dec. 20 request, according to the lawsuit, Anderson sought all records related to allegations that Gruszynski sexually harassed the female staffer, including complaints containing the allegations, records created and/or obtained in the course of investigations related to the allegations; and all reports, findings, and/or conclusions related to the allegations.
The day before, on Dec. 19, Scott Bauer of the Associated Press and Riley Vetterkind of the State Journal asked for the complaint, Briana Reilly of The Capital Times asked for the complaint and investigation, and Molly Beck of the Journal Sentinel requested any records pertaining to the complaint.
According to the lawsuit, on Dec. 20, Fuller replied to the plaintiffs, denying all their requests. The response, which the complaint asserted was written by Amanda Jorgenson, the human resources manager within the LHRO, said the Legislature had applied the public records balancing test and determined that the public interest in nondisclosure outweighed that of disclosure.
"The only information provided in the response was a paragraph indicating that a complaint was filed, an investigation determined that the allegations were substantiated, and remedial actions that were required as a result," the lawsuit complained. "No records were provided. Plaintiffs have received no other response to their requests."
In the response, the author said the Legislature determined that the public interest in protecting the privacy and dignity of past and future victims/complainants/witnesses and instilling employee confidence that the Legislature would handle sensitive internal complaints confidentially to ensure that future victims/witnesses felt safe reporting concerns and cooperating with internal investigations, outweighed any public interest in disclosure of the requested records, even in redacted form.
"Specifically, staff have requested that the materials related to the request above not be released and expressed concerns that release of the materials related to the requests above, even in redacted form, would compromise the privacy and dignity of the complainant/witnesses based upon the fact that the complainant/witnesses could still be easily identified," the response stated. "Staff had also voiced concerns that releasing such records, even in redacted form, would have a chilling effect on future victims coming forward to report concerns and future witnesses cooperating with internal investigations."
All of which would compromise the Legislature's ability to be informed of and to timely respond to and resolve such concerns and complaints, the response stated.
In an attempt to balance all those public policy concerns and the public interest in disclosure of such information, the response said the Legislature did acknowledge that a legislative employee filed a formal complaint with the (LHRO) against Gruszynski.
"The LHRO investigated the employee's complaint and determined that the employee's allegations were substantiated," the response stated.
As a result of the substantiated findings, the response said remedial actions as determined by Gruszynski's leadership would be applied, and he would attend anti-harassment training with the LHRO.
The plaintiffs contended that those explanations and reasonings were not sufficient. According to the complaint, under the state public records law, it is the declared public policy of the state that every citizen is entitled to the greatest possible information regarding the affairs of government and the official acts of government officers and employees.
"(State statute) thus provides that the open records law 'shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business,' and further, that '(t)he denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied,'" the complaint states. "The open records law provides that a requester has the right to inspect any record, subject only to extremely narrow and well-defined exceptions, and to receive a copy of a record."
Clearly, the complaint asserted, the records requested by the plaintiffs were 'records' subject to disclosure under the open records law, and the response contained no valid basis for denial.
"Defendants have accordingly violated the open records law," the lawsuit stated. "Defendants' actions have caused and will continue to cause injury to the plaintiffs by depriving them and the public of their rights under the open records law."
The plaintiffs sought to have the court declare that defendants violated the open records law, and to issue a mandamus order directing them to produce for the plaintiffs a copy of the requested records without delay. The lawsuit further asked for reasonable attorneys' fees, damages of not less than $100, plaintiffs' other actual costs, and punitive damages if the court found that defendants arbitrarily and capriciously denied or delayed response to the requests.
A history
A review by the Associated Press this past January showed that at least 101 state legislators nationally have been publicly accused of sexual harassment or misconduct since the start of 2017.
While the allegations have grown, so has resistance by legislative leaders of both parties to release investigatory records.
In the AP review, at least 39 lawmakers had resigned or were expelled from office since January 2017 following sexual misconduct allegations and an additional 37 who faced other forms of repercussions, such as the loss of committee leadership positions.
A few were cleared, the AP stated, and investigations were ongoing against others; the list of 101 accused lawmakers included at least one person from three-fourths of the states.
Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.
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