STATE EX REL BLUM v. BOARD OF EDUCATION,
209 Wis.2d 377 (Ct.App. 1997)
STATE OF WISCONSIN EX REL. ELIZABETH BLUM,
PETITIONER-APPELLANT,
v.
BOARD OF EDUCATION,
SCHOOL DISTRICT OF JOHNSON CREEK,
RESPONDENT-RESPONDENT.
COURT OF APPEALS OF WISCONSIN.
No. 96-0758.
Submitted on briefs December 9, 1996.
Decided March 6, 1997.
Petition to review filed.
APPEAL from an order of the circuit court for Jefferson
County: JACQUELINE R. ERWIN, Judge. Affirmed.
For the petitioner-appellant the cause was submitted on
the briefs of Kirby E. Brant of Watertown.
For 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.
Before Dykman, P.J., Roggensack and Deininger, JJ.
DEININGER, J.
Elizabeth Blum appeals from 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.[fn1]
Because we conclude that the requested records are
confidential "pupil records" under Section 118.125,
Stats., they are exempt from public access and
disclosure under Section 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.[fn2]
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
her 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 Section 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.
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 Section 19.32(2), Stats., a "record"
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:
Any 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
"the 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
ile 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,
"documents 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 and 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 employees who represent them."
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 Section 19.32(2),
Stats.,[fn3] the Board failed to produce any evidence
that would overcome the strong presumption in favor of
public access required by statute and case law.
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 "any
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 Section 118.125(1)(c) and (d) and
(2), Stats.[fn4]
The circuit court concluded that "disclosure of
another student's marks to Blum is prohibited
by Chapter 118," and we agree.[fn5]
Blum's attempt to remove the information she
requests from the confidentiality mandate of
Section 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 Section 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 Section 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," Section 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 Section 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 Section 118.125, Stats.
We therefore conclude that the requested interim grades
are pupil records exempted from disclosure under
Section 19.36(1), Stats., by the "clear statutory
exception" set forth in Section 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, "There is an absolute right to inspect a
public document in the absence of specifically
stated sufficient reasons to the contrary."
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 179, 184 (1979).
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.[fn6]
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 Section 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 "no hint of the distinction
made today by the majority has been suggested."
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] The basic "access" statute, Section
19.35(1), Stats., begins: "Except as
otherwise provided by law, any requester
has a right to inspect any record."
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). We do not agree with
the dissent's suggestion that our decision
overrules Pangman and Munroe.
The statute under consideration in Pangman, id.,
Section 19.85, Stats.,[fn7] is not a "clear statutory
exception" to Section 19.35, Stats. Rather, Section
19.85, Stats., 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.[fn8]
Thus, Section 19.35(1)(a) essentially creates a
statutory Beckon/Breier rule when a public policy
indicated by Section 19.85, Stats., is relied
upon for a denial.
We are aware of no similar requirement applying to
"clear statutory exceptions" to Section 19.35, Stats.
We concluded in
Pangman v. Zellmer,
163 Wis.2d 1070,
473 N.W.2d 538 (Ct. App. 1991),
that no statutes cited by the City of Milwaukee
were applicable to the records under consideration,
other than Section 19.85, Stats., as previously
discussed. Id. at 1084, 473 N.W.2d at 543.
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 Section 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 Section 118.125, Stats.,
which prohibits the disclosure of individual student
grades to others, is a clear statutory exception to the
access mandate of Section 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 Section 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.
[fn1] Sections 19.31 through 19.39, Stats.
[fn2] See Section 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 Section 19.37(1), Stats.
Thus, whether Blum is entitled to obtain the
records through civil discovery procedures,
Chapter 804, Stats., is not before us.
[fn3] 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 Section
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.
[fn4] Section 118.125(1)(d), Stats., defines "pupil
records" as "all records relating to
individual pupils maintained by a school";
Section 118.125(1)(c) states that "progress
records" are "pupil records which include the
pupil's grades"; and Section 118.125(2)
mandates that "all pupil records maintained
by a public school shall be confidential."
[fn5] 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 Section 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).
[fn6] The dissent correctly notes that "courts
often require litigants to identify the
statute or theory of law upon which they
rely."
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.
[fn7] Section 19.85, Stats., sets forth exemptions
to the Open Meetings Law, SectionSection
19.81-19.98, Stats.
[fn8] 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 Board.,
125 Wis.2d 480, 373 N.W.2d 459 (Ct. App. 1985),
which makes clear that Section 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 Section 19.35(1), Stats.,
states that the exemptions under which a
closed meeting may be held pursuant to
Section 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.
_______________________________________________________
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,
"There is an absolute
right to inspect a public
document in the absence
of specifically stated
sufficient reasons to the
contrary."
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
Section 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 Wis.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 Board
125 Wis.2d 480, 486,
373 N.W.2d 459, 463(Ct. App. 1995)
"It 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: Section 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.[fn1]
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, Sections 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. duPont 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 Section 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.
[fn1]
For a small example: Section 144.52, 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
Section 19.35(1), Stats."
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.