STATE EX. REL. DALTON v. MUNDY,
80 Wis.2d 190 (1977)
257 N.W.2d 877
STATE EX REL. DALTON, Respondent,
MUNDY, Director of Institutions and
Departments of Milwaukee County,
and another, Appellants.
Supreme Court No. 75-631.
Submitted on briefs
September 6, 1977.
Decided October 4, 1977.
APPEAL from an order of the circuit court for Milwaukee county:
RICHARD W. ORTON, Circuit Judge of the Fifth Circuit, Presiding.
For the appellants the cause was submitted on the briefs of
Robert P. Russell, corporation counsel, and James J. O'Donnell,
deputy corporation counsel.
For the respondent the cause was submitted on the brief of
Ralph J. Ehlinger and Hoyt, Greene & Meissner, S.C. of Milwaukee.
The issue in this case is whether the Director of Institutions
and Departments of Milwaukee County and the Administrator of the
Milwaukee County General Hospital are required by Section 19.21,
Stats.,[fn1] the public records statute, to permit a citizen to
examine certain requested records maintained by the Milwaukee
County General Hospital.
The trial court held that the hospital records requested in the
petition were within the ambit of the public records statute.
The facts briefly stated are as follows:
Joan Dalton sought to inspect hospital records concerning
policies and practices of the Milwaukee County
General Hospital in handling abortion cases.
She directed her requests for inspection to Edwin Mundy, Director
of Institutions and Departments of Milwaukee County, and Marvin
F. Neely, Administrator of the Milwaukee County General Hospital.
Dalton received some documents, study of which
led to a request for additional information.
Because Dalton did not know the form in which the information was
available, she described the substantive content of the documents
she desired rather than the titles or dates of the documents.
Neely responded that Dalton's request was one to review patient
records, disclosure of which "would be a breach of confidence
between the medical facility, its doctors and patients," and
Neely referred the matter to the Milwaukee County Corporation
Corporation Counsel asked Dalton to be more specific as to
what she sought, and she complied by preparing a "List of
Documents"[fn2] which described the content of the
Her letter forwarding the List stated that she
did "not seek to discover the identities of individual
patients or counselees, but [she did seek] accurate
statistical information about the handling of abortion
and abortion counseling."
Her letter continued "If the only records containing the
information are individual patient records, we will accept
photocopies of those records with the names obscured. . . ."
Dalton's request was refused and she petitioned
for an alternative writ of mandamus.
The petition can be summarized as alleging
that Milwaukee County General Hospital is a
public hospital operated by Milwaukee County
through the Milwaukee County Board of Public
that Mundy and Neely are county officers
within the meaning of Section 19.21, Wis.
that Mundy and Neely have in their lawful
possession or control or are lawfully
entitled to the possession or control of
records and documents relating to the
operation of the hospital and in particular
those requested by Dalton;
that Dalton requested permission to examine
or copy certain public records and documents
(described in note 2); and that her request
was refused in violation of Section 19.21,
The court issued an alternative writ of mandamus on
September 12, 1975, commanding Mundy and Neely either
to submit the specifically listed documents and records
to Dalton's examination or to serve a written return giving
their reasons for not doing so.
Mundy and Neely moved to quash the writ "on the ground that
no reason in law is stated in the Petition herein for the
issuance thereof and said Petition does not show that the
plaintiff is entitled to a Writ of Mandamus as prayed."
On January 12, 1976, the circuit court entered an
order denying the motion to quash and granting
Mundy and Neely leave to file a return.
This is the order appealed from.
A motion to quash a writ of mandamus "shall be deemed a demurrer
to the complaint"[fn4] and the issue raised by this motion before
the circuit court and this court is whether the facts in the
petition state a cause of action under Section 19.21, Stats.[fn5]
Mundy and Neely concede that those records requested by
Dalton which are not individual patient medical records
are public records within the meaning of Section 19.21, Stats.
Mundy and Neely's contention at the trial court and here is that
the petition fails to state a cause of action because Dalton is
requesting individual patient medical records which should not
be viewed as public records under Section 19.21, Stats.
Mundy and Neely raise an interesting question, but it is
not the one presented by the facts stated in the
petition or by the trial court decision.
Dalton's communications with Mundy and Neely persistently
and continually denied she was seeking
individual patient medical records.
The trial court interpreted the petition as not requesting
individual patient medical records, and we agree with this
interpretation of the petition.
Neither the order appealed from nor the circuit court's
decision requires that individual patient medical
records be made available to Dalton.
The trial judge said
"It would be, in my opinion, horrendous to
permit this Plaintiff or this Petitioner to
go into that hospital and at random read the
charts of all the patients in the gynecology
or obstetrics department.
However, I have equally a strong feeling that
administrative records, statistical records,
records which are not personalized as to the
patient come within the ambit of our public
Dalton's petition should not be interpreted
narrowly to defeat it.
The general rule is that a pleading will be fairly and liberally
construed to give effect to its object and purpose.
This rule is especially applicable in this case where the action
is to compel public officers to perform their
prescribed statutory duties.
This court has previously noted that the "public policy,
and hence the public interest, favors the right of
inspection of documents and public records."
Beckon v. Emery,
36 Wis.2d 510, 516,
153 N.W.2d 501 (1967).
Any assertions by Mundy and Neely that they cannot comply with
the writ because, for example, they do not have the records
requested by Dalton (the existence of which is admitted for
purposes of the motion to quash),[fn6] or because the information
requested is available only in individual patient medical records
which they claim are not within the public records statute or are
privileged,[fn7] were not properly before the trial court and are
not properly before this court at this stage of the proceedings.
These defenses, if they exist in this case, and any others,
may be raised in making a return to the alternative writ
of mandamus, and the trial court will then determine the
validity of the defenses.[fn8]
The petition on its face encompasses only records which
the trial court properly described as statistical records,
administrative records and records which are not personal
to or identifiable with individual patients.
The petition thus states a cause of action under
Section 19.21, Stats., and the motion to
quash was properly denied.
By the Court. Ä Order affirmed.
[fn1] Section 19.21, Stats. provides:
19.21(1) Each and every officer of the
state, or of any county, town,
city, village, school district, or
other municipality or district, is
the legal custodian of and shall
safely keep and preserve all
property and things received from
his predecessor or other persons
and required by law to be filed,
deposited, or kept in his office,
or which are in the lawful
possession or control of himself or
his deputies, or to the possession
or control of which he or they may
be lawfully entitled, as such
19.21(2) Except as expressly provided otherwise,
any person may with proper care, during
office hours and subject to such orders
or regulations as the custodian thereof
prescribes, examine or copy any of the
property or things mentioned in
Any person may, at his own expense and under
such reasonable regulations as the custodian
prescribes, copy or duplicate any materials,
including but not limited to blueprints,
slides, photographs and drawings.
Duplication of university expansion materials
may be performed away from the office of the
custodian if necessary.
[fn2] LIST OF DOCUMENTS
1. Records showing the names of all doctors who have
performed elective abortions at County General
since July of 1974.
2. All application forms and employment agreements of
all doctors who have performed elective abortions
at County General since July of 1974.
3. Records showing the number of elective abortions
performed by each such doctor and the dates on
which they were performed.
4. Names, application forms, and employment
applications of all doctors who have agreed to
perform elective abortions at County General but
who have not done so.
5. All existing documents, whether or not currently
in force (including instructions to or reports
from staff members), discussing or setting forth
procedures and policies for processing,
interviewing, counselling, admitting, or referring
individuals wanting elective abortions or
undecided about wanting elective abortions.
6. All records showing the names of persons who have
participated in processing, interviewing,
counselling or referring such individuals since
July of 1974.
7. All application forms and employment agreements of
all such persons, and any other documents
indicating any past or present relationships, if
any, between any such person and any other
organization or person engaged in elective
abortion counselling or in the performing of
8. All records regarding individuals wanting elective
abortions or undecided about wanting elective
abortions, who were processed, interviewed,
counselled, admitted or referred since July of
1974 which show:
a. the number of such individuals.
b. the dates on which such individuals were
processed, interviewed, counselled, admitted,
c. the names of persons interviewing or
counselling such individuals.
d. the action taken as a result of the
interviewing and counselling of such
e. the organizations or persons to which
individuals deciding to have elective
abortions were referred.
f. the name of the person or persons who made
the decision as to where to refer those
individuals who decided to have elective
9. All existing documents, whether or not currently
in force, setting forth or discussing the required
qualifications of organizations or persons to whom
elective abortion referrals are or have been made.
10. All documents setting forth or discussing
procedures for determining whether such
qualifications are or have been met by
organizations or persons accepting such referrals.
11. All documents showing action taken to implement
12. All documents setting forth or discussing
procedures for post-abortion or post-referral
studies or investigations of individuals having,
or being referred to have, elective abortions.
13. All documents showing action taken to implement
[fn3] See Section 46.21, Stats.
[fn4] Section 293.01, Stats. 1973.
[fn5] "The motion to quash a writ of mandamus serves
the same purpose as a demurrer to a complaint.
The basic issue is Ä do the facts alleged in the .
. . petition state a cause of action. The facts
(but not the conclusions or statements of law) as
pleaded are, for the purpose of the motion,
considered to be true and the petition is to be
State ex rel. Farley v. Board of School Directors,
49 Wis.2d 765, 769,
183 N.W.2d 148 (1971).
Will v. H. & S.S. Department,
44 Wis.2d 507, 511,
171 N.W.2d 378 (1969).
[fn6] See H 24.07, Rules of the State Board of Health, Wis.
Admin. Code, relating to hospital medical record
departments and medical records.
[fn7] See Section 905.04, Stats., and H 2.01, Rules of the
State Board of Health, Wis. Admin. Code, relating to
the physician-patient privilege.
[fn8] The trial court clearly set forth
this point as follows:
"[A]t this stage of the game it is my
duty to assume as true each and all of
the allegations of the petition which
constitute allegations of ultimate fact.
It is not for me today to attempt to make a
determination as to whether certain records
are or are not kept, as to what the form of
these records may or may not be, as to
whether or not it will ultimately become
necessary for the Respondent herein to
assemble or create or put together
information sought by the Petitioner.
Those issues will be determined at
a later state of this action.
Those issues will be determined, if they
become issues, after a return is filed and
after those issues are raised and after the
parties have an opportunity to adduce proof
before the Court on each side so that
findings can be made in those areas. . . ."
END OF DALTON FILE PROPER