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.

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COURT OF APPEALS OF WISCONSIN.

No. 96-0758.

Submitted on briefs December 9, 1996.

Decided March 6, 1997.



Petition to review filed.
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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]
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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."
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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.
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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."
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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).
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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]
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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.
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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.
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     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":
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     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]
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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.


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