Judge sides with indie pub over redacted records from Wausau PD

The Badger Project has won an open records lawsuit against the Wausau Police Department, with a judge ruling Tuesday that the department redacted too much from an internal investigation into a former lieutenant’s alleged sexual harassment.

“Law enforcement officers, like all public employees, should expect some level of public scrutiny,” Marathon County Circuit Court Judge Suzanne O’Neill wrote in a decision filed March 14.

Asked whether they would appeal, the city of Wausau’s outside attorney Jasmyne Baynard said she’s not going to comment on “ongoing litigation.”

The 7-page police report, originally released to The Badger Project last year, had most of its text blacked out.

The redacted report revealed the officer had been accused of fourth-degree sexual assault but “it entirely deleted the department’s findings and conclusions about that allegation,” O’Neill wrote in her decision.

Tom Kamenick, an attorney and president of the Wisconsin Transparency Project, a law firm dedicated to enforcing the state’s Open Records and Open Meetings laws, filed the lawsuit last June on behalf of The Badger Project. He said the judge’s decision signals a recognition of the importance of institutional transparency.

“Courts are starting to realize that police officers, rather than receiving special exemption from transparency requirements, should be subject to greater transparency and accountability commensurate with the greater authority they wield,” Kamenick said in an email.

“The #MeToo movement, the Catholic sex abuse scandal and the revolving-door approach to police discipline have made it clear that powerful institutions cannot be trusted to handle their problems internally,” he added.

Wausau City Attorney Anne Jacobson had argued the redactions were necessary to protect victim and witness identities, protect the city’s “right and opportunity to retain competent law enforcement personnel” and “to avoid a loss of morale” within the police department.

The judge wrote in her decision that victim and witness identities could still be kept confidential while allowing more of the investigation’s details to be public.

The police department’s “redactions went beyond protecting the privacy and confidentiality of victims and witnesses and hid the conduct for which (the officer) was being investigated.”

“Protecting the privacy and confidentiality of witnesses is not a reason to hide the alleged conduct itself,” O’Neill wrote. “To the extent the Department found that the allegations were substantiated, that information should be released.”

Moreover, she wrote, case law makes clear “there is no blanket law” protecting police personnel records.

She ordered the Wausau Police Department to release additional material from the report, and if this does not resolve the dispute, “the court will step in.”

The legal action was part of The Badger Project’s ongoing series of stories on Wisconsin officers who were fired, forced out or resigned from one law enforcement agency only to get subsequently hired at another. The Wausau Pilot & Review news organization is covering half the attorney fees with The Badger Project for this particular case.

The police lieutenant in question, Andrew Hartwig, was employed by the Wausau Police Department from 2007 to 2019, and promoted to lieutenant in 2016, according to records from the Wisconsin Department of Justice.

Hartwig resigned in 2019 following an internal investigation that alleged he had engaged in sexual harassment and created a hostile work environment. He went on to work for the Cadott Police Department, then left in 2021 to work full-time in construction, according to Cadott Police Chief Louis Eslinger.

The Wausau Police Department initially withheld investigation records into Hartwig’s conduct, despite a public records request submitted in 2021 by The Badger Project. After inquiring about the report, The Badger Project received the heavily redacted version of the investigation several months later.

“The Wisconsin Transparency Project has successfully argued in numerous cases that government custodians cannot raise generic concerns over ‘morale’ or ‘privacy’ to withhold records. They have to be able to point to specific examples of harms that are likely to occur given the particular facts at hand,” Kamenick said.

“It’s important for the public to learn what Officer Hartwig actually did within the broad label of ‘sexual harassment,’” he said.

The judge’s decision on the case comes in the midst of “Sunshine Week,” an initiative started in 2005 to promote open government.

In 2021, Kamenick and The Badger Project successfully sued the La Crosse Police Department for records after the department denied a request. Per Wisconsin’s Open Records Law, the department then had to repay Kamenick’s and The Badger Project’s attorney fees.

Since then, however, the Wisconsin Supreme Court issued a ruling that weakens the state’s Open Records Law by redefining what it means to “prevail” in a lawsuit to obtain public records. Under the ruling, if government bodies turn over records voluntarily, after being sued but before a judge takes action, the requesters have not prevailed under the law and can no longer seek attorney fees.

In February, Republican state Sen. Duey Stroebel and state Rep. Todd Novak introduced a bill to reverse the Supreme Court’s decision.

“The taxpayer-funded entities who have shown a tendency for flouting public records requests could be further emboldened to skirt the law” by the state Supreme’s Court’s ruling, Stroebel said in a statement.

The co-authored bill would restore a “longstanding precedent” to Wisconsin’s Open Records Law, Stroebel said.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.