PUBLISHED OPINION
Case No.: 96-0758
†Petition for
Review Filed
Complete
Title
of
Case:STATE OF WISCONSIN
ex rel.
ELIZABETH BLUM,
Petitioner-Appellant,†
v.
BOARD OF EDUCATION, SCHOOL
DISTRICT OF JOHNSON CREEK,
Respondent-Respondent.
Submitted
on Briefs: December 9, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: March 6, 1997
Opinion
Filed: March
6, 1997
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Jefferson
(If
"Special" JUDGE: Jacqueline
R. Erwin
so
indicate)
JUDGES: Dykman,
P.J., Roggensack and Deininger, JJ.
Concurred:
Dissented: Dykman,
P.J.
Appellant
ATTORNEYSFor the petitioner-appellant the
cause was submitted on the briefs of Kirby E. Brant of Watertown.
Respondent
ATTORNEYSFor the respondent-respondent the
cause was submitted on the brief of Larry Steen and Shannon A. Allen of Godfrey,
Neshek, Worth & Leibsle, S.C. of Elkhorn.
COURT OF
APPEALS DECISION DATED AND
RELEASED March
6, 1997 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0758
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN ex rel.
ELIZABETH
BLUM,
Petitioner-Appellant,
v.
BOARD
OF EDUCATION, SCHOOL
DISTRICT
OF JOHNSON CREEK,
Respondent-Respondent.
APPEAL
from an order of the circuit court for Jefferson County: JACQUELINE R. ERWIN, Judge. Affirmed.
Before
Dykman, P.J., Roggensack and Deininger, JJ.
DEININGER,
J. Elizabeth Blum appeals an order denying her petition for a
writ of mandamus to compel the Johnson Creek School Board to provide her access
to certain records under the Open Records Law.[1] Because we conclude that the requested
records are confidential "pupil records" under § 118.125, Stats., they are exempt from public
access and disclosure under § 19.36(1), Stats. Accordingly, we affirm the denial of Blum's
petition.
BACKGROUND
Blum,
through counsel, requested the Board to provide her "a per-class report of
all interim grades which existed as of February 15, 1995 and which were later
averaged or otherwise incorporated into the final grade" for the eighth
semester for herself and one "other student." This request was later clarified as follows:
It is simply impossible to believe that teachers had not
entered any grades for tests, homework, class participation, and so on in their
class books or other classroom record systems.... Those teacher-record grades
are what I expect to receive. Whether
such grades were filed with the office or otherwise reported is immaterial.
The Board had awarded the 1995 Academic Excellence
Higher Education Scholarship to the "other student" whose interim
grades were sought.[2] Although not identified by name in the
record requests or in subsequent court documents, there is no question that the
identity of the "other student" was known to Blum and could be
discovered by "anyone."
The
Board, by its president, responded to Blum's request by noting that it had
already provided certain "materials and transcripts you requested"
and by denying the specific request for interim grades:
As per your
request for teacher records three weeks into the final quarter, I will not
burden the administrative staff in tabulating such material. These partial grades are immaterial in
determining the recipient of the Academic Excellence Scholarship as per Board
policy. Also, they are very incomplete
and would not impact on the decision in naming a Valedictorian as per District
procedure.
Blum then filed her mandamus petition. In response, the Board, through legal
counsel, sent Blum's attorney a nine-page letter setting forth in detail its
"specific reasons for denying disclosure to you of the requested records
of per-class interim grades."
The
circuit court, after hearing argument from both counsel, issued a memorandum
decision concluding that the requested items were not public records because
they were not kept by an "authority," and further, even if they were
public records, they were exempted from disclosure by the confidentiality
provisions of § 118.125, Stats.
ANALYSIS
a. Standard of Review
Generally,
a circuit court's decision to grant or deny a petition for writ of mandamus
will be upheld unless the court erroneously exercised its discretion. See State ex rel. Lewandowski
v. Callaway, 118 Wis.2d 165, 171, 346 N.W.2d 457, 459-60 (1984). Where, as here, however, the issue is the
application of the Open Records Law to undisputed facts, we review de novo the
question of law presented. See Wisconsin
State Journal v. University of Wisconsin-Platteville, 160 Wis.2d 31,
36, 465 N.W.2d 266, 268 (Ct. App. 1990).
b. "Records" Kept by An
"Authority"
Under
§ 19.32(2), Stats., a
"`[r]ecord' means any material on which written ... information is
recorded or preserved, regardless of physical form or characteristics, which
has been created or is being kept by an authority." An "authority" is defined as:
[A]ny
of the following having custody of a record: a state or local office, elected
official, agency, board, commission, committee, council, department or public
body corporate and politic created by constitution, law, ordinance, rule or
order; a governmental or quasi‑governmental corporation ... or a formally
constituted subunit of any of the foregoing.
Section 19.32(1).
The
circuit court based its decision to deny the writ on its conclusion that
"[t]he interim marks recorded by a teacher are not kept by an authority
under the statute." The basis for
this conclusion, however, is not clear because no evidentiary proceedings were
conducted in the circuit court, nor did the Board file any affidavits detailing
when, how, and by whom "interim grades" are created, maintained and
used.
Blum
argues that since an "authority," such as the Board, must act through
its officers and employees, "[d]ocuments which otherwise fit the
definition of `records' are `kept' by an authority whenever they are in the
possession of an officer or employee who falls under the supervision of the
`authority.'" We agree. A public body may not avoid the public
access mandate of Chapter 19, Stats.,
"by delegating both [a] record's creation and custody to an
agent." Journal/Sentinel,
Inc. v. Shorewood Sch. Bd., 186 Wis.2d 443, 452-53, 521 N.W.2d 165,
169-70 (Ct. App. 1994).
The
Board asserts in its brief that the interim grades are not "given to the
superintendent and are not kept by the School Board," and further that the
Board "did not, does not, nor in the future intends to create or keep
material and documentation defined as interim marks and grades which are
created by individual teachers."
The Board's counsel made similar assertions during argument in the circuit
court. These assertions have no support
in the record because, as noted, the Board presented no testimony or
affidavits. Moreover, the assertions do
not negate the Board's entitlement to require teachers to submit interim
grades to the Board. Even if the
interim grades are physically in the possession of teachers and not Board
members, they are nonetheless within the "lawful possession or
control" of the Board. See Hathaway
v. Green Bay Sch. Dist., 116 Wis.2d 388, 393-94, 342 N.W.2d 682, 685
(1984); State ex rel. Youmans v. Owens, 28 Wis.2d 672, 678-80,
137 N.W.2d 470, 472-73 (1965).
Sections
19.32 to 19.37, Stats., are to be
construed with a presumption in favor of "complete public access" to
information regarding "the official acts of [government] officers and employes
who represent them." (Emphasis added).
Section 19.31, Stats.; see
Hathaway, 116 Wis.2d at 392, 342 N.W.2d at 684. While a factual showing might be made that
the information requested in this case was excluded from the definition of
"record" in § 19.32(2), Stats.,
the Board failed to produce any evidence that would overcome the strong
presumption in favor of public access required by statute and case law.[3] See Fox v. Bock, 149
Wis.2d 403, 417, 438 N.W.2d 589, 595 (1989) (custodian must produce evidence
and persuade fact-finder that "draft" exclusion applies). Thus, unless there exists: (1) a "clear statutory exception";
(2) a common law limitation; or (3) an overriding public interest in keeping
the record confidential, the information sought must be disclosed. Hathaway, 116 Wis.2d at 397,
342 N.W.2d at 687.
c. Confidentiality of "Pupil Records"
Section
19.36(1), Stats., provides that
"[a]ny record which is specifically exempted from disclosure by state or
federal law or authorized to be exempted from disclosure by state law is exempt
from disclosure under s. 19.35(1)."
The Board argues that the interim grades of the "other
student" are pupil records exempted from disclosure by § 118.125(1)(c)
and (d) and (2), Stats.[4] The circuit court concluded that
"[d]isclosure of another student's marks to [Blum] is prohibited by
Chapter 118," and we agree.[5]
Blum's
attempt to remove the information she requests from the confidentiality mandate
of § 118.125, Stats., is
strained at best. She asserts that
since the "other student" is not named in her request, the interim
grades requested do not "relate to an individual pupil," and thus
they are not "pupil records" under § 118.125(1)(d). Her concession that anyone who knew the
scholarship recipient's identity "could identify the `other
student,'" by itself defeats any plausibility her argument might
have. Moreover, nothing in
§ 118.125 suggests that "pupil records" are exempted from the
confidentiality requirement if released under a guise of anonymity.
Finally,
it should be noted that if the interim grades were shown to be
"notes or records maintained for personal use by a teacher,"
§ 118.125(1)(d), Stats.,
would exclude them from the pupil records confidentiality mandate of the
statute. But, as the trial court noted,
if the interim grades qualified for this confidentiality exclusion, they would
likely still be excluded from public disclosure by § 19.32(2), Stats. ("`Record' does not include
drafts, notes ... and like materials prepared for the originator's personal
use."). As we previously
explained, the record in this case is devoid of evidence that the interim
grades qualify for either statutory exclusion.
Thus, the grades are presumptively both a "record" for
purposes of Chapter 19, Stats.,
and a "pupil record" for purposes of § 118.125, Stats.
We
therefore conclude that the requested interim grades are pupil records exempted
from disclosure under § 19.36(1), Stats.,
by the "clear statutory exception" set forth in § 118.125, Stats.
d. Specificity of Reasons for Denial
Blum claims that since
the Board failed to specify any cognizable grounds when it denied access to the
information requested, a writ of mandamus must issue even if the denial is
justifiable. She cites the following
language from Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279
N.W.2d 179, 184 (1979), in support of her argument:
If the
custodian gives no reasons or gives insufficient reasons for withholding a
public record, a writ of mandamus compelling the production of the records must
issue. Beckon [v.
Emery, 36 Wis.2d 510, 518, 153 N.W.2d 501, 504 (1967)] states,
"[T]here is an absolute right to inspect a public document in the absence
of specifically stated sufficient reasons to the contrary."
(Emphasis in original).
The
Board's denial letter referred only to the administrative burden in complying
with the request and to the immateriality and incompleteness of the
records. We agree with Blum that the
letter failed to specify a sufficient public policy consideration that would
outweigh the public's interest in access to the information. We also agree with Blum that the Board's
post-petition response by legal counsel does not necessarily cure the
insufficiencies of its original denial.
See Oshkosh Northwestern Co. v. Oshkosh Library Bd.,
125 Wis.2d 480, 484, 373 N.W.2d 459, 462 (Ct. App. 1985).
We
conclude, however, that the rule in Beckon v. Emery, 36 Wis.2d
510, 153 N.W.2d 501 (1967), that an authority's failure to sufficiently specify
reasons for withholding information automatically mandates that access be
ordered, is applicable only when the denial is justified by public policy
considerations which outweigh the public policy favoring access. See Breier, 89 Wis.2d at
427, 279 N.W.2d at 184. The Beckon/Breier
rule does not, however, compel production of records whose confidentiality is
expressly guaranteed by statute.
In
Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis.2d 142,
156-60, 469 N.W.2d 638, 643-45 (1991), the supreme court extensively reviewed
the history and rationale of the Beckon/Breier rule. The court concluded that the
"specificity" rule developed for "two primary reasons":
First,
the specificity requirement provides a means of restraining custodians from
arbitrarily denying access to public records without weighing whether the harm
to the public interest from inspection outweighs the public interest in
inspection. Second, specific policy
reasons are necessary to provide the requester with sufficient notice of the
grounds for denial to enable him to prepare a challenge to the withholding and
to provide a basis for review in the event of a court action. The specificity requirement is, therefore,
procedural in nature. The focus at this
stage is not on whether the custodian was correct in denying the inspection
request; it is on whether the custodian has fulfilled his obligation to the
public to provide a meaningful and reviewable response to the request.
Id. at 160-61, 469 N.W.2d at 645.
The
cited rationale for the rule has validity only when the basis for a denial of
access is grounded upon public policy considerations. When a custodian concludes that the public's interest in access
is outweighed by some competing public interest, he or she must tell the
requester (and any court which might ultimately review the denial) what that
interest is. If, however, the
information requested is specifically exempted by statute from disclosure, as
are the interim grades Blum requested, there is no need for a custodian to
weigh competing public interests. The
legislature has already done so.
Unlike
the facts giving rise to a public-policy-based denial of access, which may
indeed be unknown to the requester, the existence of a statute exempting
certain kinds of information from disclosure is not uniquely within the
custodian's knowledge. By the same
token, a reviewing court's de novo determination whether certain information is
statutorily exempted from disclosure is not aided by anything a custodian might
say in a denial letter, nor is it deterred by the custodian's silence.[6]
Here,
in contrast to the failure in Beckon, 36 Wis.2d at 518, 153
N.W.2d at 504, which "made it impossible for the courts to make the
contemplated review," the Board's insufficient denial letter to Blum does
not prevent a court from determining whether a "clear statutory
exception" applies to the requested interim grades. We conclude that since the Board's denial of
access is justified because the information sought is exempted from disclosure
by § 118.125, Stats., the
Board's failure to specifically cite the statutory exemption does not preclude
us, or the trial court, from determining whether the Board was authorized to
deny the request.
The
dissent posits that "[n]o hint of the distinction made today by the
majority has been suggested."
(Dissent at ___). We are not
certain that "hints" in past opinions of possible future distinctions
are necessary in order for a distinction to be made in an appropriate
case. Nevertheless, we believe that
distinguishing record access denials justified by "clear statutory
exceptions" from those justifiable only by public policy considerations is
in fact foreshadowed in several of the cases cited in the dissent. In Mayfair, 162 Wis.2d at 163,
469 N.W.2d at 646, after an extensive discussion of the Beckon/Breier
rule concluded with the previously cited reasons for the rule, the supreme
court determined that where the reasons for a denial are "obvious and
well-known," it would not refuse to consider the merits of the
denial. In Munroe v. Braatz,
201 Wis.2d 442, 448-49, 549 N.W.2d 451, 454 (Ct. App. 1996), this court said:
The
public records law does not displace other provisions of the statutes providing
for confidentiality of particular records.
Indeed, the basic access provisions of the law are expressly conditioned
on the absence of other laws to the contrary,2...
2 The basic "access" statute, § 19.35(1), Stats., begins: "Except as
otherwise provided by law, any requester has a right to inspect any
record."
(Emphasis by the Munroe court).
The
dissent also maintains that a statutory exception versus public policy
balancing distinction has previously been rejected by this court, citing Munroe
and Pangman & Associates v. Zellmer, 163 Wis.2d 1070, 473
N.W.2d 538 (Ct. App. 1991). (Dissent at
__). We do not agree with the dissent's
suggestion that our decision overrules Pangman and Munroe.
The
statute under consideration in Pangman, § 19.85, Stats.,[7]
is not a "clear statutory exception" to § 19.35, Stats.
Rather, § 19.85 is only "indicative of public policy" and
it:
may be used as grounds for denying public access to a
record only if the authority or legal custodian ... makes a specific
demonstration that there is a need to restrict public access at the time that
the request to inspect or copy the record is made.
Section 19.35(1)(a), Stats.[8] Thus, § 19.35(1)(a) essentially creates
a statutory Beckon/Breier rule when a public policy indicated by
§ 19.85, Stats., is relied
upon for a denial. We are aware of no
similar requirement applying to "clear statutory exceptions" to
§ 19.35, Stats.
We
concluded in Pangman that no statutes cited by the City of
Milwaukee were applicable to the records under consideration, other than
§ 19.85, Stats., as
previously discussed. Pangman,
163 Wis.2d at 1084, 473 N.W.2d at 543-44.
We also concluded that the public policy reasons cited by the remaining
municipalities in the consolidated appeal were sufficiently specific. Id. at 1085-89, 473 N.W.2d at
544-46. We did not address whether a
"clear statutory exception" applicable to the records justified the
denials, even though not cited by a custodian at the time of denial.
Our
decision today also does not contradict our holding in Munroe v. Braatz,
201 Wis.2d 442, 549 N.W.2d 451 (Ct. App. 1996). We held that "the reasons advanced by the [Department of
Regulation and Licensing] for denying the public access to the sought‑after
records do not raise public policy considerations sufficient to overcome the
public interest in disclosing them."
Id. at 450, 549 N.W.2d at 455. The custodian there, as in Pangman, sought to rely
on public policies indicated by § 19.85, Stats.,
and we determined that the custodian had not adequately justified the denial on
that basis. Munroe, 201
Wis.2d at 448, 549 N.W.2d at 454. Our
only discussion in Munroe of statutory exceptions was the
previously quoted acknowledgement that statutory exceptions have a preemptive
effect on the Open Records Law, and a recognition that no statutory exceptions
applied to the records there under consideration. Id. at 448-50, 549 N.W.2d at 454.
In
summary, we conclude that § 118.125, Stats.,
which prohibits the disclosure of individual student grades to others, is a
clear statutory exception to the access mandate of § 19.35, Stats.
The Board's failure to properly specify a reason for denying access to a
student's grades does not, therefore, entitle Blum to compel their
disclosure. Our conclusion should not
be construed as an endorsement of silence or obfuscation by an authority when
denying an open records request. An
authority is obligated under § 19.35(4), Stats.,
to notify a requester of the reasons for a denial of access. We hold only that the failure of an
authority to comply with one statute does not require a court to order it to
violate another.
By
the Court.—Order affirmed.
No. 96-0758(D)
DYKMAN,
P.J. (dissenting). Thirty years ago, the
supreme court adopted a rule requiring custodians to give reasons for
withholding government documents from public scrutiny. A police chief had refused an attorney's
request for records of citations issued by a particular police officer, giving
no reasons for that refusal. The court
determined that the police chief's failure to give specific reasons for
refusing to release a public record required the release of that record whether
or not adequate reasons might later be given:
No
doubt a number of plausible and perhaps valid reasons for withholding these
documents could have been specified and, if so specified, the trial court might
after the determination outlined in [State ex rel. Youmans v. Owens,
28 Wis.2d 672, 137 N.W.2d 470 (1965)] have upheld the police chief's
determination. But no reason was given,
and from the record it is obvious that no attempt was made by the chief of
police or his representatives to comply with Youmans and its
rationale.
We thus conclude,
consistent with the admonition of Youmans, that where, as here,
no specific reason was given for withholding a public record from inspection,
the writ of mandamus compelling its production should issue as a matter of
course.
Beckon v. Emery, 36 Wis.2d 510, 518, 153 N.W.2d 501, 504 (1967).
This
"matter of course" rule was expanded to include not only a
custodian's failure to give reasons for withholding a public record, but a
custodian's failure to give adequate reasons for withholding a public
record:
If the custodian gives no reasons or gives insufficient
reasons for withholding a public record, a writ of mandamus compelling the
production of the records must issue. Beckon,
supra at 518, states, "[T]here is an absolute right to inspect a
public document in the absence of specifically stated sufficient reasons
to the contrary." (Emphasis
supplied.)
Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179, 184 (1979).
Since
Newspapers, Inc., this "matter of course" rule has been
uniformly applied. No hint of the
distinction made today by the majority has been suggested. See Chvala v. Bubolz,
204 Wis.2d 82, 92, 552 N.W.2d 892, 896 (Ct. App. 1996); Mayfair
Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis.2d 142, 160, 469 N.W.2d
638, 644 (1991); Milwaukee Journal v. Board of Regents, 163
Wis.2d 933, 942 n.5, 472 N.W.2d 607, 612 (Ct. App. 1991); Pangman &
Assoc. v. Zellmer, 163 Wis.2d 1070, 1084-85, 473 N.W.2d 538, 544 (Ct.
App. 1991); State ex rel. Richards v. Foust, 165 Wis.2d 429, 439,
477 N.W.2d 608, 612 (1991); Fox v. Bock, 149 Wis.2d 403, 416, 438
N.W.2d 589, 595 (1989); Oshkosh Northwestern Co. v. Oshkosh Library Bd.,
125 Wis.2d 480, 483, 373 N.W.2d 459, 461-62 (Ct. App. 1985); Hathaway v. Joint
Sch. Dist. No. 1, 116 Wis.2d 388, 404, 342 N.W.2d 682, 690 (1984). Four of these cases are more recent than Mayfair,
the case upon which the majority bases its conclusion that the "matter of
course" rule is inapplicable to statutory open records exemptions.
Indeed,
we have rejected the distinction the majority makes between records kept
confidential by statute and those made confidential by use of the test which
balances openness against harm. In Pangman
& Assoc. v. Zellmer, 163 Wis.2d 1070, 473 N.W.2d 538 (Ct. App.
1991), an attorney requested copies of the personnel files of nine police
officers. Id. at 1075,
473 N.W.2d at 540. The records
custodian refused to release performance and promotional reviews of the nine
officers, citing several statutes as the reason for his refusal. Id. at 1083, 473 N.W.2d at
543. We rejected the citation of the
statutes as an adequate response:
Because the
custodian gave no reasons other than the employment of exemption statute sec.
19.85, Stats., we reject the trial court's finding that the denial of the
disclosure of the performance/promotional records was stated with
specificity. Mere recitation of the
exemption statute is insufficient without providing an added public policy
reason for dismissal.
Pangman, 163 Wis.2d at 1083-84, 473 N.W.2d at 543.
We
faced a similar situation in Munroe v. Braatz, 201 Wis.2d 442,
549 N.W.2d 451 (Ct. App. 1996), and we came to the same conclusion. There, the records custodian denied an open
records request because he felt that the harm resulting from the release of
certain test scores outweighed the public's interest in those scores. Id. at 444-45, 549 N.W.2d at
452-53. Later, in court, the custodian
relied upon several statutes making the test scores confidential. We said:
"The department refers us to statutes .... As we have stressed above, our review must
be based on the reasons stated by the custodian for denying access to the
records, and Braatz's letter rejecting Munroe's request does not attempt to
justify withholding the records for any [statutory] reason." Id. at 448, 549 N.W.2d at
454. We did not consider whether the
statutes the custodian cited would have made the test scores confidential.
I
also believe that the majority's conclusion is contrary to a second rule of
Wisconsin's open records law. Neither
this court nor counsel are to supply reasons that could justify a records
custodian's inadequate response. In Tratz
v. Zunker, 201 Wis.2d 774, 781, 550 N.W.2d 141, 143-44 (Ct. App. 1996),
we held:
If other facts
exist which justify Zunker's conclusion that Tratz should not have access to
the records he sought, she has not disclosed them, and neither this court nor
her counsel may supply them. See
Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis.2d 480,
486, 373 N.W.2d 459, 463 (Ct. App. 1995) ("[I]t is not the trial
court's nor this court's role to hypothesize the reasons for denying access or
to consider reasons not asserted by the custodian.").
See also Nichols v. Bennett, 199 Wis.2d 268, 276, 544 N.W.2d 428,
431 (1996); Munroe, 201 Wis.2d at 448, 549 N.W.2d at 454.
I
do not believe that it is possible to square the majority's conclusion with the
rules set out in these cases. The Board
of Education's response to Blum's open records request was that giving the
requested information was a burden and that the information was immaterial and
incomplete. The majority agrees that
those reasons are insufficient to support a denial of the requested records. Thus someone, either counsel, the trial
court or this court has hypothesized or considered a reason, to wit: § 118.125, Stats., to deny Blum's open records request.
Even
were we writing on a clean slate, without the rules set out in Oshkosh
Northwestern, Tratz, Munroe, Pangman
and the other cases I have noted, I would not make the distinction made by
the majority. I agree that Mayfair
Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis.2d 142, 156-60, 469
N.W.2d 638, 643-45 (1991), gives two reasons for the rule that a records
custodian must respond to an open records request with specificity. These reasons are: (1) to control arbitrary behavior by records custodians; and
(2) to provide sufficient notice to requesters to enable them to challenge
the denial and to provide a basis for judicial review.
I
do not believe that these reasons are valid only if a custodian denies access
on public policy grounds. We have seen
an example of arbitrary behavior using statutory reasons in Pangman. There are at least 174 statutes and supreme
court rules that exempt material from open records disclosure, and most are not
found in Chapter 19 of the statutes.[9] The majority's decision upholds the right of
records custodians to respond with irrelevancies, leaving counsel or trial and
appellate courts to discover which statutory exemption might be
applicable. I conclude that this
encourages arbitrary behavior by records custodians rather than discouraging
it.
In
addition, considering irrelevant responses as adequate surely does not enable a
requester to challenge an open records denial and cannot help us to review the
case. If a response of "burden on
administrative staff, immateriality and incompleteness" is sufficient,
what response is insufficient? I can
think of nothing. Of course, if a court
examines the list of statutory exemptions to the open records law and concludes
that none apply, the custodian can be ordered to provide the records. But only after expense and frustration for
everyone except the records custodian.
I am unwilling to embark on this new venture.
I
am sympathetic with the majority's concern that the failure of a custodian to
comply with the requirement of specificity should not require a court to issue
a writ of mandamus in the face of a statutory exemption to the open records
law. The answer to this is
twofold. First, both the legislature
and Wisconsin's appellate courts have long ago concluded that the benefits of
requiring a specific answer from a custodian outweigh the embarrassment or
inconvenience of releasing a record that might have been kept secret. We have a policy of openness in government
in Wisconsin. If we err on the side of
openness, that error is consistent with this policy. Section 19.31, Stats.,
provides:
In recognition of
the fact that a representative government is dependent upon an informed
electorate, it is declared to be the public policy of this state that all
persons are entitled to the greatest possible information regarding the affairs
of government and the official acts of those officers and employes who
represent them. Further, providing
persons with such information is declared to be an essential function of a
representative government and an integral part of the routine duties of
officers and employes whose responsibility it is to provide such
information. To that end, ss. 19.32 to
19.37 shall be construed in every instance with a presumption of complete
public access, consistent with the conduct of governmental business. The denial of public access generally is
contrary to the public interest, and only in an exceptional case may access be
denied.
Second,
courts often require litigants to identify the statute or theory of law upon
which they rely. A failure to do so
often results in waiver. Thus, though
Chapter 893, Stats., sets out a
variety of statutes of limitation and requires that actions shall be commenced
within a scheduled number of years or be barred, a party may waive this
statutory right by failing to timely raise it.
Robinson v. Mount Sinai Med. Ctr., 137 Wis.2d 1, 17, 402
N.W.2d 711, 717 (1987). This is true
even though a defendant has a constitutional right to rely on a statute of
limitation. Westphal v. E.I.
du Pont de Nemours & Co., 192 Wis.2d 347, 373, 531 N.W.2d 386,
395 (Ct. App. 1995). Our Constitutions
grant significant rights to persons accused of crime, but the United States and
Wisconsin Reports are filled with examples of the waiver of those rights by
failure to assert them.
It
is consistent with Wisconsin's doctrine of waiver to require a records
custodian to specify the reasons why he or she is withholding access to a
public record. It is also consistent
with the waiver doctrine for a court to consider only asserted reasons when
deciding whether public records should be kept secret. A court does not violate a statute of
limitation when the statute is not timely brought to the court's
attention. A court does not violate a
defendant's constitutional rights by failing to consider a constitutional
theory not cited or argued by the defendant.
Nor does a court violate a statutory exemption to the open records law
by examining only the reasons given by a custodian for nondisclosure.
After
today, a school district that responds "forget it" to an open records
request for pupil records will see that response affirmed on appeal, while the
same response to a request for prison employees' addresses will result in an
order directing the release of that information, notwithstanding that a proper
response in the latter case would have led to the records being held
confidential. See State ex
rel. Morke v. Record Custodian, 159 Wis.2d 722, 726, 465 N.W.2d 235,
236 (Ct. App. 1990). After today,
records custodians need not concern themselves with replying to open records requests
if they believe the record may be kept secret because of a statutory
exemption. If a petition for a writ of
mandamus is brought, the custodian's attorney can then search for reasons why
the record should be kept secret. The
result is that keeping government secret will be easier to accomplish, and
litigation encouraged. Given the
legislative directive found in § 19.31, Stats.,
I believe that courts should be developing the common law in favor of open
government records, not secrecy.
The
supreme court has said that we may not overrule our own published
decisions. See Cook v. Cook,
208 Wis.2d 166, 190, 560 N.W.2d 246, 256 (1997). Nonetheless, I believe that we have done so today. I believe that the majority's distinction
between statutory and common law exemptions to our open records law is
unnecessary, and ultimately illusory. I
therefore respectfully dissent.
[2] See § 39.41, Stats.
Apparently, the "other student" stood first in class rank
after seven semesters and received the scholarship. Blum stood first in the final, eight semester class rank, while
the "other student" was then second.
Although the record request may have been a prelude to litigation over
the scholarship selection, this action was purely for mandamus under
§ 19.37(1), Stats. Thus, whether Blum is entitled to obtain the
records through civil discovery procedures, Chapter 804, Stats., is not before us.
[3] The circuit court concluded that the interim
grades did not qualify as "drafts, notes, preliminary computations ... prepared for the originator's personal
use," an exclusion from the definition of "record" under §
19.32(2), Stats., because they
are created for a teacher's "professional use." The Board does not argue on appeal that the
"personal notes" exclusion applies, nor is there evidence in the
record to support such an argument. We
therefore do not address this issue.
[4] Section 118.125(1)(d), Stats., defines "pupil
records" as "all records relating to individual pupils maintained by
a school"; § 118.125(1)(c) states that "progress records"
are "pupil records which include the pupil's grades"; and § 118.125(2)
mandates that "[a]ll pupil records maintained by a public school shall be
confidential."
[5] Section 118.125(2)(a), Stats., requires that a pupil, or the
parent or guardian of a minor pupil, must be shown a copy of the pupil's own
"progress records." Blum's
request was for both her own and the "other student's" interim
grades. She does not argue on this
appeal, nor did she in the circuit court, that the writ should be granted in
part, compelling access only to her own interim grades. Rather, Blum's argument in both her initial
and reply briefs focuses on why the "other student's" interim grades
should not be deemed a record "relating to individual pupils" under
§ 118.125(1)(d). Neither party has
addressed whether the Board improperly denied Blum access to her own interim
grades. We therefore decline to consider
the issue. See Waushara
County v. Graf, 166 Wis.2d 442, 451, 480 N.W.2d 16, 19, cert. denied,
506 U.S. 894 (1992).
[6] The dissent
correctly notes that "courts often require litigants to identify the
statute or theory of law upon which they rely." (Dissent at ___). Here,
the Board, in its response to the mandamus petition, did identify the statutes
and theories upon which it sought to rely.
The trial court thus was not required to "hypothesize" the
applicable statutory exception, nor was it required to examine the entire
panoply of statutory exemptions to see if any might apply. We are not suggesting that any appellate
waiver doctrines be abandoned. When a
clear statutory exception to the Open Records Law applies, however, we conclude
there is no reason to extend the waiver rule to pre-litigation communications
between the parties.
[8] In Pangman
& Associates v. Zellmer, 163 Wis.2d 1070, 473 N.W.2d 538 (Ct. App.
1991), we specifically relied on the discussion in Oshkosh Northwestern
Co. v. Oshkosh Library Bd., 125 Wis.2d 480, 373 N.W.2d 459 (Ct. App.
1985), which makes clear that § 19.85, Stats.,
is not a statutory exception to the Open Records Law, but merely a shorthand
statement of various public policy considerations requiring exposition and
balancing by a custodian:
We acknowledge that sec. 19.35(1), Stats., states that
the exemptions under which a closed meeting may be held pursuant to sec. 19.85
are indicative of public policy.... [However], the custodian must state
specific public policy reasons for the refusal.
Oshkosh, 125 Wis.2d at 485, 373 N.W.2d at 462-63.
[9] For a small example: § 299.55, Stats., provides that government records relating to the
regulation of used oil fuel facilities are subject to the open records law, but
that under certain conditions, some of those records may become
confidential. Section 757.93, Stats., makes judicial commission
proceedings confidential. Adoption
records may not be disclosed except under certain circumstances. Section 48.93(1d), Stats. A statement in
a pardon application containing reference to the address of a victim is not
subject to the open records law.
Section 304.10(3), Stats. Section 29.38(9), Stats., makes confidential certain records regarding the
value or weight of clams and the location where they were collected. Reports and records of sexual contact by
therapists are confidential and "are exempt from disclosure under
s. 19.35(1)." Section
940.22(4)(a), Stats. Certain drafting records of the Legislative
Reference Bureau are confidential.
Section 13.92(1)(c), Stats. Section 93.50(2)(e), Stats., excludes from the open records law information and
records obtained in farm mediation and arbitration. And some records collected by the State Historical Society are
kept secret. Section 16.61(13)(d), Stats.