## Facts

- Robert Zellner, a Cedarburg High School science teacher, was investigated for alleged misuse of a school computer.
- The school district retained a private forensic firm that produced (1) a memorandum summarizing findings and (2) a CD containing adult images and related internet searches allegedly accessed on the school computer.
- After a public hearing, the school board terminated Zellner’s employment; a grievance challenging the termination was filed.
- A newspaper and reporter requested the memo and CD under Wisconsin’s Open Records Law, Wis. Stat. §§ 19.31–19.39.
- The district’s records custodian determined both items were disclosable and that the public interest in disclosure outweighed any interest in nondisclosure.
- Zellner sued for de novo judicial review under Wis. Stat. § 19.37 and sought an injunction barring release, arguing (among other things) that federal copyright law prohibited releasing the CD and that disclosure would invade his privacy and harm his reputation.
- The circuit court denied injunctive relief and ordered release, staying disclosure pending appeal; the court of appeals certified the matter to the Wisconsin Supreme Court.

## Issues

1. Whether the subject of requested records has standing to seek de novo review and argue that federal copyright law bars disclosure under Wisconsin’s Open Records Law.
2. Whether the investigative memo and CD are “records” subject to disclosure, or whether federal copyright law creates an exemption that precludes release.
3. Whether the records custodian properly applied the common-law balancing test weighing interests favoring nondisclosure against the statutory presumption of public access.

## Decision

- The Wisconsin Supreme Court affirmed the circuit court’s order requiring release of the memo and CD.
- Zellner had standing to challenge the disclosure decision and to raise copyright-based arguments in the open-records action.
- The memo and CD qualified as “records” subject to the Open Records Law, and federal copyright law did not categorically bar disclosure.
- The custodian’s balancing determination was upheld because the public interest in transparency concerning alleged misconduct by a public school teacher and the basis for termination outweighed Zellner’s asserted privacy and reputational interests.

## Legal Principles

- Wisconsin’s Open Records Law embodies a strong presumption of public access to government records and must be construed to favor disclosure consistent with governmental business.
- The subject of a requested record may seek de novo judicial review under Wis. Stat. § 19.37 of a custodian’s decision to release records.
- Materials in an authority’s possession can qualify as “records” even if they contain copyrighted content; copyright does not create a broad, nonstatutory exemption from open-records disclosure.
- In deciding whether to withhold a record, a custodian applies a common-law balancing test that weighs public and private interests favoring nondisclosure against the public interest in access; courts may uphold disclosure where transparency interests outweigh privacy or reputational concerns.

## Conclusion

The court held that the district properly released an investigative memorandum and a CD of computer images under Wisconsin’s Open Records Law because the items were disclosable records, copyright law did not bar compliance, and the public interest in understanding the basis for a public employee’s termination outweighed the asserted privacy and reputational harms.


Zellner v. Cedarburg Sch. Dist., 731 N.W.2d 240 (Wis. 2007)