Section 140.09. Access to hearing files; limited discovery; inspection of records.

 

(1)   Pre-hearing stage.

(a) The hearing office shall compile a hearing file for every case in which a request for hearing has been received which shall contain the papers, documents and departmental records relating to the issue of the hearing. Prior to the scheduled date of the hearing, a party to a hearing may inspect the hearing file and procure copies of file contents during regular hearing office hours at the hearing office or other convenient location as determined by the hearing office. If requested, the hearing office may mail copies of file contents to a party. The department may allow such inspection or release of file contents to a party's representative, union agent or legislator only if that individual indicates by a written or verbal statement that the individual has authorization from the party.

(b) Unless the administrative law judge orders otherwise, the sole means of discovery available to a party or representative prior to a hearing is inspection of the hearing file and procurement of copies of file contents. The administrative law judge may also order a prehearing conference under s. DWD 140.07 . The provisions of ch. 804 , Stats. , do not apply to hearings under ss. 108.09 and 108.10 , Stats.

(c) The administrative law judge may deny a request to inspect the hearing file or procure copies of file contents on the day of the hearing if such inspection or procurement would delay or otherwise interfere with the hearing.

(2)   Hearing stage. At the hearing, evidence and exhibits are open to inspection by any party or representative except that the administrative law judge may conduct a closed inspection of evidence and exhibits if the interests of justice so require. The judge may sequester from the hearing room any person, party or representative as part of the closed inspection. The judge may also issue a protective order to prohibit the parties and their representatives from disclosing any evidence and exhibits listed as confidential in the protective order if the interests of justice so require.

(3)   Post hearing stage. After the hearing is concluded, a party or representative may inspect any hearing file contents that the party or representative may inspect under subs. (1) and (2) , and also the hearing recording, written synopsis of testimony, and any transcript that is prepared at the department's direction. Any person who is not a party or representative at the hearing may inspect only the following and only if social security numbers have been redacted from the documents:

(a) The initial determination.

(b) The exhibits submitted and marked as exhibits at the hearing, whether or not received by the administrative law judge.

(c) The appeal tribunal decision issued for the hearing.

(d) The hearing recording.

(e) The written synopsis of testimony.

(f) The transcript of the testimony, if one is prepared at the department's direction.

(4)   Confidentiality of certain records at all stages of hearing.

(a) Notwithstanding subs. (1) to (3) , neither an employing unit which is a party to a hearing nor its representative may inspect:

1. The worker's unemployment insurance record as that record relates to work for another employing unit unless an administrative law judge approves a request.

2. Department memoranda concerning unemployment tax litigation strategy.

3. The investigation reports of department auditors concerning the status and liability of employing units under ch. 108 , Stats.

(b) Notwithstanding subs. (1) to (3) , the administrative law judge may declare all or parts of documents or other material which contains records or preserves information and which the administrative law judge examined in a closed inspection under sub. (2) to be, in whole or in part, confidential and closed to inspection by one or more parties, representatives or other persons.

(c) Notwithstanding subs. (1) to (3) , evidence and exhibits declared to be confidential under a protective order issued by the administrative law judge under sub. (2) are closed to inspection as stated in the order.

(d) Notwithstanding subs. (1) to (3) , no party, representative or other person, except a statutory reviewing body, as specified under ss. 108.09 and 108.10 , Stats. may inspect the handwritten notes made by the administrative law judge at the hearing.

Cr. Register, November, 1985, No. 359 , eff. 12-1-85; r. and recr. Register, May, 1993, No. 449 , eff. 6-1-93; renum. from ILHR 140.08 and am., Register, June, 1997, No. 498 , eff. 7-1-97; CR 08-019 : am. (3) (intro.) and (d) Register July 2008 No. 631 , eff. 8-1-08.