Open Records and Post-Tenure Review

With regard to post-tenure review, it is important to recognize the manner in which management of personnel records of university employees, including faculty, is influenced by the philosophy of open government. Stated simply, personnel records are not exempt from the open records law. There is a presumption that such records are available for review upon request, unless, on balance, the public interest served by non-disclosure can be demonstrated to outweigh the public interest in open government. This standard is very difficult to meet. The balancing test must be applied independently to each request to review a personnel record. In general, for public employees not involved in law enforcement activities, Wisconsin courts have favored disclosure of personnel records, even those involving disciplinary action. [Wis. Newspress v. Sheboygan Falls Sch. Dist., 199 Wis. 2d 768 (1996)]

In devising criteria and process requirements for post-tenure review, each departmental executive committee should be mindful of the underlying context in which records generated by the process may be reviewed. The potential audience for such records is not necessarily limited to the department, or to the applicable school or college, or to any other administrative organ of the university. While the faculty legislation implementing post-tenure review prescribes the nature of the records to be maintained by the reviewed faculty member's chair, and to be shared with the appropriate dean, this prescription is a university rule; it does not supplant application of the state open records law.