University RClatiOnS WEILWAUKEE 8c Communications O??ice of Public Records Chapman Hall 1808 PO. Box 413 April 24, 201 8 Milwaukee, WI 53201?0413 414 229-2849 phone 414 229-6261 fax VIA EMAIL: karen.herzog@irn.com Karen Herzog Milwaukee Journal Sentinel Re: UW-Milwaukee Records Request Dear Ms. Herzog, I am responding in part to your records request, clari?ed January 11 for ?all available documents on all sexual harassment complaints ?led against any employee in a teaching or supervisory capacity within the past ?ve years.? Subsequently, you clari?ed you were seeking the key documents and that you wished to include allegations of sexual assault as well as sexual harassment. In an effort to read your request in a way that does not render it overbroad or unable to be ful?lled I am providing you with the complaints and the ?ndings of investigations into complaints of sexual harassment and/ or sexual assault that were handled centrally by UW-Milwaukee? Of?ce of Equity and Diversity Services. In responding to this request, I have limited the response to Title IX cases of sexual harassment and sexual assault. I did not include Title IX cases that only concern discrimination based on gender or sexual orientation. Further, because I am statutorily required to provide certain persons with notice under Wis. Stat. 19.356, I am currently providing them an opportunity to object to the release of the documents. However, I recognize that due to a large queue and limited resources, you have been waiting for these documents and I do not wish to delay my response any further. I will supplement this response when UWM has satis?ed its statutory obligations, however, depending on the success of the required certi?ed mailing, it may take several more weeks. Finally, in light of the various media requests concerning this topic, there is a broad public interest in these records. Therefore, on this particular occasion, I am releasing the records that would be responsive in the broadest interpretation of the media requests I have received. If you have additional requests after reviewing these documents, please let me know. Please note that redactions have been made to these records for the following reasons: FERPA UWM has redacted information pursuant to the Family Educational Rights and Privacy Act (FERPA). FERPA (20 U.S.C. 1232g; 34 CFR Part 99) is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the US. Department of Education and prohibits the release of education records and/or any personally identi?able information from a student?s education record without prior written permission from the student. FERPA de?nes education records as those records that are directly related to a student and are maintained by the educational agency or institution or by a party acting for the agency or institution. ERPA further de?nes ?personally identi?able information? of a student consists beyond the name and includes . .A personal identi?er, such as the student's social security number, student number, or biometric record. . . .other indirect identi?ers. . .other information that, alone or in combination, is linked or linkable to a speci?c student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.? Accordingly, the presumption of public access to portions of these records is defeated because ERPA quali?es under the ?otherwise provided by law? exception to the public records law contained in Wis. Stat. 1936(1). I redacted these records to remove personally identi?able information of students. Even if FERPA does not de?nitely prohibit the release of this information, the university has redacted this information pursuant to the balancing test inherent in Wisconsin's public records law. The university determined that the public interest in releasing this information is outweighed by the public interest in withholding it. The university considered that FERPA conditions the availability of federal educational funds on the university?s nondisclosure of personally identi?able information related to students, and the strong public policy favoring the privacy of student records expressed therein. The university believes that these facts support the strong public interest in keeping private student educational records and any personally identi?able information of students contained in this release. Complainant and Witness Names and Identifying Information UWM has redacted the names of complainants and witnesses where they appeared in these records, as well as anything else that could identify these individuals, such as contact information, places of residence, speci?c work sites, speci?c events and dates of those events and other information. The university performed the balancing test inherent in the Wisconsin public records law and determined that the public interest in withholding this information outweighs the public interest in release. There may be a public interest in the nature of and even some details of complaints received by the university, including whether and how complaints are processed and investigated. If there is some slight public interest in the identity of the person making the complaint, that interest is outweighed by the interest in protecting the identity of the complainants. This is especially true in cases where the allegations involve harassing behaviors. The Wisconsin Supreme Court has emphasized that, when conducting the balancing test, the ?public policy interest in protecting the privacy of victims of crime . . . weighs heavily in favor of nondisclosure.? Democratic Party of 2 Wisconsin v. Department of Justice, WI 100,114, 372 Wis. 2d 460, 888 584. Speci?cally, the court analyzed ?whether the victims will be re-traumatized by renewed suffering as a result of an additional Violation of their privacy.? Id. at 1130. Courts have also held that it is appropriate to consider the con?dentiality and privacy concerns of witnesses and complainants and the chilling effects of possible embarrassment if such information is released, especially in a sexual harassment situations. See Hempel v. City ofBaraboo, 284 Wis.2d 162, 198, 699 551 (2005). Due to the sensitive nature of these records, I determined that disclosing the identities of complainants and victims could re-traumatize the complainants and potentially deter others from reporting similar incidents in the future. Similarly, releasing witnesses? names in internal investigations would discourage employees from cooperating in investigations in the future. See Id at 1170-73 (emphasizing that the ?concern about witness con?dentiality carries special weight in cases like these involving sexual harassment?) In fact, several witnesses speci?cally voiced their concerns that their identities would be released as a result of their cooperation with EDS. The strong public interest in investigation of these cases is served by these redactions. Only when complaints are made can they be evaluated and, if necessary, investigated and resolved. If complainants and witnesses are unwilling to participate because they fear their names or other identifying information will be made public, it would severely impair the university?s ability to identify and address misconduct where it does exist. Respondent Names and Identifying Information Where a complaint was investigated and there was insuf?cient evidence to substantiate a claim of sexual harassment, or if the corroborated allegations didn?t rise to the level of a policy violation or meet the de?nition of sexual harassment under the law, I withheld the name of the respondent (with certain exceptions noted below) and details that could lead to the identity of the respondent such as contact information, places of residence, speci?c work sites, and other information. Under the balancing test I determined that the public interest in protecting the privacy and/or reputation of respondents accused of unsubstantiated allegations of sexual harassment or assault outweighs the interest in disclosure, particularly here, where the persons involved are not public of?cials. Cf. Hempel, 284 Wis. 2d 162, 1175 (??Certainly, prominent public of?cials must have a lower expectation of personal privacy than a regular public employee?) In striking this balance, I considered the public policy evinced by Wis. Stat. 995.50, recognizing a right of privacy, and the public policy behind Wis. Stat. 19.85 noting that public meetings may be closed to prevent substantial adverse effect upon the reputation of a person, to conclude that these names may be withheld. Withholding the respondent?s identity in these cases serves the public interest in protecting the privacy interest of these employees and, to some extent, their reputation. Privacy concerns can play a role in the balancing test analysis. The public interest in protecting the reputation and privacy of individuals may be one factor used to favor nondisclosure of a particular record. Linzmeyer v. Forcey, 254 Wis.2d 306, 327-28, 646 811 (2002). In Hempel, the Supreme Court acknowledged that ?records dealing with personnel issues are different from records concerning, say, public ?nance or highway contracts,? id., 1177, in part because there is a ?concern that some of the information that would be released might be factually inaccurate and cause damage to the subject?s reputation,? id., 1176. If unfounded allegations were routinely subject to disclosure, it could cause a loss of employee morale and discourage people from seeking public employment. See id., 111174-75. In this instance, the public interest in access to information ?regarding the affairs of government,? Wis. Stat. 19.31, is satis?ed by releasing the ?ndings letters which provide ?a substantial degree of understanding about the alleged problem,? Hempel, 284 Wis. 2d 162, 1170. While the public may have an interest in unsubstantiated allegations of sexual harassment or assault, that interest is served through our release of a substantial portion of the record, with the majority of the details of the case released and with only minimal redactions as noted in this response. Privacy UWM has redacted certain highly personal information from the attached reports, to protect the privacy of complainants and other individuals. In some cases, if the information is related to students, it may have been redacted pursuant to FERPA, for the reasons given in section 1, above. Where not covered by FERPA, the university performed the balancing test inherent in the Wisconsin public records law and determined that the public interest in withholding this information outweighs the public interest in release. We considered the public policy evinced by Wis. Stat. 995.50, recognizing a right of privacy, and by the public policy behind Wis. Stat. 19.85 noting that public meetings may be closed to prevent substantial adverse effect upon the reputation of a person to conclude that the public interest in withholding private information related to speci?c details of an assault or harassment is strong. While the public may have an interest in the general type of complaint raised, the process by which the complaint was investigated, and the outcome reached, there is not a similar interest in the speci?c details of an assault or harassment. Salacious or personal details are related only extremely tangentially, if at all, to the substantive conduct of government business. We further considered the chilling effect that release of this private information might have on complainants. The university and the public have a strong interest in the university being made aware of complaints of harassment and assault. Complainants are not likely to be forthcoming if they believe that highly sensitive and private information will be publicly released. This could lead to the embarrassment or shaming of complainants at a vulnerable time. The mere fact that they have chosen to make a complaint should not render every detail of alleged harassment or assault fully open to the public. Given the negligible public interest in these details and noting that the totality of the incident can be understood by the information released, it has been withheld. Personal contact information UWM has redacted personal contact information pursuant to Wis. Stat. and/or the balancing test inherent in the Wisconsin public records law. These redactions include cell phone numbers, personal email addresses, and home addresses. With regard to redactions made pursuant to the balancing test, I concluded that the public interest in this information is outweighed by other public interests favoring the protection of such information. While the public has an interest in the conduct of government business and the identity of those persons communicating with the university, there is not a similar interest in the personal contact information of those individuals when it is unrelated to the substantive conduct of that business. Given the negligible public interest in this information, and mindful of the fact that when subject to public release, personal contact information may be used to harass and or commit identity theft, this information has been withheld. Purely personal information Purely personal information has been redacted pursuant to the balancing test. In applying the balancing test, I concluded that any public interest in the disclosure of this purely personal information evincing no violation of law or policy is outweighed by public policies recognizing the privacy interest of individuals in matters unrelated to the conduct of government business. See Schill v. Wisconsin Rapids School District Schill, 2010 WI 86 11 9 n. 4 (Abrahamson, C. ., lead id. 11 148 n. 2 (Bradley, ., concurring); id. 11 173 n. 4 (Gableman, ., concurring), 327 Wis. 2d 572, 786 NW. 2d 177. I reviewed the information at issue and concluded that it is unrelated to the substantive conduct of government business and evinces no violation of law or policy, rather that it references private information related to an individual?s health or home life. By redacting information in the report, I am denying aspects of your request. Therefore, I am required to inform you that my determination is subject to mandamus (court review) under Wis. Stat. or upon application to the attorney general or district attorney under Thank you, Julie R. Kipp Public Records Custodian UW-Milwaukee