STATE EX. REL. DALTON v. MUNDY,  80 Wis.2d 190 (1977) 257 N.W.2d 877
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STATE EX REL. DALTON, Respondent, v. 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.
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APPEAL from an order of the circuit court for Milwaukee county: 

RICHARD W. ORTON, Circuit Judge of the Fifth Circuit, Presiding.

Order affirmed.



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.



ABRAHAMSON, J.



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.



We agree.



The facts briefly stated are as follows:
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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

Counsel.



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

records sought.
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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."
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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

          Welfare[fn3]



          and



          that Mundy and Neely are county officers

          within the meaning of Section 19.21, Wis.

          Stats.;



          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,

          Wis. Stats.



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]
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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

          records statute."
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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]
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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

                    officers.



          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

                    subsection 19.21(1).



                    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

               elective abortions.



          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,

                    or referred.

               c.   the names of persons interviewing or

                    counselling such individuals.

               d.   the action taken as a result of the

                    interviewing and counselling of such

                    individuals.

               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

                    abortions.



          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

               such procedures.



          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

               such procedures.



[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

          liberally construed."



          State ex rel. Farley v. Board of School Directors,

           49 Wis.2d 765, 769,

          183 N.W.2d 148 (1971).



          See also,



          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
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