HATHAWAY v. GREEN BAY SCHOOL DIST.,

116 Wis.2d 388 (1984)

342 N.W.2d 682           CONTENTS


Larry HATHAWAY, Petitioner-Appellant, v. JOINT SCHOOL DISTRICT NO. 1, CITY OF GREEN BAY, et al.; Board of Education of Joint School District No. 1, City of Green Bay, et al.; and Timothy G. Quinn, Superintendent of Joint School District No. 1, City of Green Bay, et al., Respondents-Petitioners.


Supreme Court No. 81-2298.

Argued October 3, 1983. Decided January 31, 1984.



(Affirming & remanding 110 Wis.2d 254,

                       329 N.W.2d 217 (Ct. App.).)
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REVIEW of a decision of the Court of Appeals.  Affirmed

and remanded.



For the respondents-petitioners there was a brief by

J.D. McKay and Parins, McKay & Mohr, S.C., Green Bay,

and oral argument by J.D. McKay.



For the petitioner-appellant there was a brief by

Stephen G. Katz, John Halla and Kelly, Haus & Katz,

Madison, and oral argument by Stephen G. Katz.
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HEFFERNAN, C.J.



This is a review of a published decision of the court

of appeals, dated December 7, 1982, which reversed a

judgment of the circuit court for Brown county, Robert

J. Parins, Circuit Judge, which denied Larry Hathaway's

petition for writ of mandamus to compel the Green Bay

Board of Education of Joint School District No. 1 to

permit him access to a computer-generated list of the

names and addresses of parents of pupils enrolled in

the school district.[fn1]  We affirm the court of

appeals and direct that the cause be remanded to the

circuit court with directions to issue a writ of

mandamus to compel the Green Bay Board of Education to

make available for inspection the list of parents'

names and addresses.







On June 4, 1981, Hathaway requested access to a

computer-generated list of the names and addresses

of all the parents of school children in the

Green Bay school district.



Hathaway, as executive director of the Green Bay

Education Association (Association), requested the list

so that the Association could contact the children's

parents in regard to its position on matters being

discussed in the collective bargaining agreement

between it and the Joint School District of Green Bay.



The Association is the certified collective bargaining

representative for the professional teachers employed

by the Joint School District of Green Bay (School

District), one of the respondents.



The computer-generated list, requested by Hathaway,

consists of the names and addresses of all parents

who have one or more children in the Green Bay

public school district, created by the School

District for its use in mailing information to

the parents of the school system's students.



Through the means of a computer, the list of names is

transferred onto mailing-address labels, which are then

individually placed on whatever mailing the School

District desires to reach the attention of the parents.
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The School District, through its attorneys, on July 15,

1981, denied Hathaway's request for the list, stating:



     "The District takes the position that the parent

      name labels to which you refer do not constitute

      public records as defined by Wisconsin law."



Hathaway, on August 24, 1981, filed a petition for writ

of mandamus asking the circuit court to compel the

School District to provide access to the list of

parents' names and addresses.



In the School District's return to petition for writ

of mandamus, it reiterated its position that the list

"is not a public record within the meaning of

Section 19.21 of the Wisconsin Statutes and

is therefore not available . . . ."



A hearing on the petition for writ of mandamus was

held on November 6, 1981, before Circuit Judge

Robert J. Parins of Brown county.





On that date, the circuit court noted that the School

District's position was predicated upon a reading of

the pupil record statute, Section 118.125, Stats.,

which prohibits the disclosure of pupil records.



The court acknowledged that a pupil record may not

include directory information concerning parents.



It noted, however, that the list of names and addresses

was gleaned from the records maintained by the School

District for the individual pupil.



Consequently, the list of parents' names and addresses

constituted a pupil record within the purview of

Section 118.125(1) and (2).



The circuit court further recognized that the purpose

of both the state and corollary federal statute,

20 U.S.C. Section 1232g (Supp. 1976), is to

safeguard the privacy of the student.



It was satisfied that disclosure of the parents' names

and addresses, derived from the pupil records,

defeated the purpose of the legislation.
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The circuit court denied Hathaway's petition for

writ of mandamus to order the School District

to provide him access to the list.



The basis upon which the court of appeals reversed the

circuit court is that the plain language of Section

118.125, Stats., demonstrates the legislature's intent

to protect certain personal information about pupils,

nothing of which is correlated with the pupil's

parents' names and addresses.



It stated,     "The mere fact that the

               information is gleaned

               from a pupil record

               does not make it a

               pupil record."



110 Wis.2d at 255.



An analysis of the public records statute, Section

19.21, Stats. (1979-80), as well as the pupil records

statute, Section 118.125(1) and (2), 1979-80, leads

us to conclude that Section 118.125 does not create

an exception to Section 19.21 which includes a list

of parents' names and addresses.



Public policy and public interest favor the

public's right to inspect public records.



Without an exception based upon statute, common law, or

an overriding public interest in nondisclosure, there

is a presumption that the public has the right to

inspect public records.



The mere fact that information is gleaned from a pupil

record does not make a public record a pupil record to

which confidentiality is afforded.



Accordingly, we affirm the court of appeals.



It is conceded by the litigants before this court

that the list of names and addresses of parents

of children in the Green Bay School District

constitutes a public record within the

purview of Section 19.21, Stats, 1979-80.



Section 19.21(1) provides that:



Custody and delivery of official property and records. 

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.
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This statute, which governs the examination or

inspection of public records, was created by

Chapter 178, Laws of 1917, and was formerly

numbered 18.01.



Prior to that time statutes authorized

inspection in certain circumstances.



Otherwise, the public's right to inspection of

public records was governed by the common law.



International Union v. Gooding,

251 Wis. 362, 371,

 29 N.W.2d 730 (1947);



State ex rel. Youmans v. Owens,

 28 Wis.2d 672,

137 N.W.2d 470,

139 N.W.2d 241 (1965);



Newspapers, Inc. v. Breier,

 89 Wis.2d 417,

279 N.W.2d 179 (1979).



In Gooding, supra, this court deemed that Section

18.01, Stats., currently Section 19.21(1), dealt with



three specific types of papers that must be kept by an

office and delivered to a successor in office.



Those three types of papers are:



(1)  Such books, papers, records, etc., as are

     required by law to be filed, deposited,

     or kept in his office;



(2)  books, papers, etc., in his possession

     as such officer;



(3)  books, papers, etc., to the possession of

     which he is entitled as such officer."



Id.  at 369.



The term, "public record," included not only those

documents specifically required to be filed by the

custodian of records, but all written papers

made by an officer within his authority.



Id. at 371; Youmans, supra.



Thus, Section 19.21 controls reports "required by law,"

as well as those "which are in the lawful possession

or control" of the school district.



These reports are denominated public records.
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The list of names and addresses of parents who have

children in the Green Bay School District is

maintained, used, and updated by the School District

for the purpose of communicating directly with the

parents of its students regarding issues and concerns.



The list of parents' names and addresses is generated

by a computer on address labels which are in the care

and custody of the School District.



It is apparent that the list was not maintained

by the School District because it was

required to do so by law.



Clearly, the list was in the possession of the School

District in its capacity as a school district, and

as a school district it was entitled to the list.



Thus, the list was in the "lawful possession

and control" of the School District.



We conclude, therefore, as did the parties, that the

list in question is a public record as contemplated

by Section 19.21(1), Stats. 1979-80.



The general rule is that any person may

inspect a public record.



The fact that the list is a public record within the

purview of Section 19.21(1), Stats. 1979-80, and a

request for its inspection was properly made, does not

mean that the list must be produced for inspection.



Section 19.21(2), 1979-80, provides:



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 Subchapter 19.21(1).

          

          Any person may, at his or her 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.



Computer programs, as defined in Section 16.97(4)(c),

are not subject to examination under this subsection,

but the data stored in the memory of a computer is

subject to the right of examination and copying."[fn2]
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On its face, because the list is a public record, it is

subject to inspection by Hathaway unless expressly

provided otherwise.



However, this court has not read this subsection

literally.



Newspapers, Inc. v. Breier, 89 Wis.2d at 426.



This section has been interpreted as stating that

one manner in which the public's right to inspect

public documents may be limited is by a statutory

provision which embodies an exception to Section

19.21(1), Stats. (1979-80).



In Gooding, supra, we interpreted the section as a

pronouncement of the common law, subject to the

limitations on the inspection of records

which existed at common law.



We relied on the revisor's notes to the subsection

which state that this "is believed to give expression

to the general implied right of the public to consult

public records."  Laws of 1917, Chapter 178, Bill No.

133, Section Thus, we declared:



     "While it is possible to contend that the

     words are so clear as not to be subject to

     construction we are of the view that the

     common-law right of the public to examine

     records and papers in the hands of an officer

     has not been extended.





     "We shall not go into the scope of the

     common-law right exhaustively or attempt to

     document our observations upon it.



     It is enough to say that there are numerous

     limitations under the common law upon the

     right of the public to examine papers that

     are in the hands of an officer as such

     officer."



251 Wis. at 372.



Thus, the public's right to inspect public records is

not only subject to statutory provisions which

expressly provide otherwise but is also subject to the

limitations which existed under common law.
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In Youmans, supra, we were called upon to determine

whether a writ of mandamus should issue to compel

Owens, the mayor of the City of Waukesha, to

permit Youmans to examine certain papers

in the custody of the mayor.



We adopted a statement of the common-law right

of inspection of public records made by

the Vermont court which stated:



     "We think it may be safely said that at

     common law, when not detrimental to the

     public interest, the right to inspect public

     records and public documents exists with all

     persons who have a sufficient interest in the

     subject-matter thereof to answer the

     requirements of the law governing that

     question."



28 Wis.2d at 681, citing



Clement v. Graham, 78 Vt. 290, 315, 63 A. 146 (1906).



We concluded that:



     "There may be situations where the harm done

     to the public interest may outweigh the right

     of a member of the public to have access to

     particular public records or documents."



Youmans, 28 Wis.2d at 681.



After we outlined the procedure which must be followed

to arrive at such a determination, we said that it is

incumbent upon the custodian of the public record who

refused the demand of inspection to



"state specifically the reasons for this refusal."



Id. at 682.



We did recognize in Youmans that public policy favors

the right of inspection and it is only in the

exceptional case that inspection should be denied.



Thus, the third exception to the public's right to

inspect public documents is where the public interest

in keeping a public record confidential outweighs the

public's right to have access to the documents.



As evidenced by the foregoing discussion, the public's

right to inspect documents is not absolute.



Gooding, supra;



Youmans, supra;





Beckon v. Emery,

 36 Wis.2d 510, 518,

153 N.W.2d 501 (1967);



Newspapers, Inc. v. Breier, supra.
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We have concluded, however, where statutes, common law,

or court decisions have not limited the public's right

to examine records, "presumptively public records and

documents must be open for inspection."



Newspapers, Inc. v. Breier, 89 Wis.2d at 426.



In Beckon, supra, 36 Wis.2d at 516, we stated that the 

     "public policy, and hence the public

     interest, favors the right of inspection of

     documents and public records."



See also,

State ex rel. Dalton v. Mundy,

 80 Wis.2d 190, 196,

257 N.W.2d 877 (1977).



There exists the legislative presumption that "where a

public record is involved, the denial of inspection is

contrary to the public policy and the public interest."



Newspapers, Inc. v. Breier,

89 Wis.2d at 426-27.



Thus, the general presumption of our law is that public

records shall be open to the public unless there is a

clear statutory exception, unless there exists a

limitation under the common law, or unless there is an

overriding public interest in keeping the public record

confidential.



Section 19.21, Stats. in light of prior cases, must be

broadly construed to favor disclosure.



Exceptions should be recognized for what they are,

instances in derogation of the general legislative

intent, and should, therefore, be narrowly construed;

and unless the exception is explicit and unequivocal,

it will not be held to be an exception.



It would be contrary to general well established

principles of freedom-of-information statutes to

hold that, by implication only, any type of

record can be held from public inspection.



Having set forth the exceptions to the public's right

to inspect documents, we now analyze the School

District's position that the list, a public record,

should not be disclosed to Hathaway.



The School District maintains that there is an express

statutory provision which limits the public's right of

full access to public records.
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It relies on Section 118.125, Stats. 1979-80,

the pupil records statute, to support its contention.



Section 118.125 provides as follows:



118.125 Pupil records.

118.125(1) DEFINITIONS.



In this section:



118.125(1)(a)  "Pupil records" means all records

               relating to individual pupils maintained

               by an elementary or high school but does

               not include notes or records maintained

               for personal use by a teacher or other

               person who is required by the department

               under Section 115.28(7) to hold a

               certificate, license or permit if such

               records and notes are not available to

               others nor does it include records

               necessary for, and available only to

               persons involved in, the psychological

               treatment of a pupil.



118.125(1)(b)  "Behavioral records" means those pupil

               records which include psychological

               tests, personality evaluations, records

               of conversations, any written statement

               relating specifically to an individual

               pupil's behavior, tests relating

               specifically to achievement or

               measurement of ability, the pupil's

               physical health records and any other

               pupil records which are not progress

               records.



118.125(1)(c)  "Progress records' means those pupil

               records which include the pupil's

               grades, a statement of the courses the

               pupil has taken, the pupil's attendance

               record and records of the pupil's school

               extracurricular activities.



118.125(2)     CONFIDENTIALITY.  All pupil records

               maintained by a public school shall be

               confidential . . ."[fn3]



The School District argues that, because pupil

records are defined as "all records relating

to individual pupils,"
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it includes the list of parental names and

addresses of students in the School District.



It is the School District's conclusion that, because

the list is a pupil record, Section 118.125 denies the

third party's right to see or use the list which

presumably is derived from individual pupil records.



Thus, the issue we address is whether the pupil record

statute, Section 118.125, Stats. 1979-80, encompasses a

list of parents' names and addresses which creates an

exception to the public records statute, Section 19.21,

1979-80, such that Hathaway does not have the right to

inspect the list.



Initially, we note that not all records concerning

pupils are to be confidential.



Only those records that fall within the express

language which defines "pupil records"

are afforded confidentiality.



The language of Section 118.125(1)(a), Stats., requires

that there be confidentiality only for records

"relating to individual pupils."



It is then clear that these records relating to

individual pupils, generally listed as "behavioral

records" and "progress records," and the specific items

subsumed within each, are pupil records not subject to

production.



Section 118.125(1)(b) and (c).



Thus, exceptions to the public records act,

Section 19.21, are specifically, expressly

set forth in Section 118.125.



Our next step is to determine whether the list of

parents' names and addresses, generated by a computer,

and used by the School District for the mailing of

information to parents of its students regarding its

concerns, is pupil record within the contemplation of

Section 118.125. Section 118.125(1)(a) defines a pupil

record as one "relating to individual pupils."



Here, the public record, the parent name-address list,

does not relate to students at all, much less

individual students.



There is no identification of an individual student

or correlation of an individual student with

a particular parent or address.
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The list is purely what it purports to be, one

which contains names of parents who have at least

one child attending school in the district.



In fact, the list does not indicate how many children

the parents have in school, because their names appear

on the list only once, regardless of how many offspring

might be in the School District.



The list does not relate to individual pupils as

required by Section 118.125(1)(a), and we

hold it is not a pupil record.



Clearly, the public record in question, the list,

does not come within the purview of behavioral records,

Section 118.125(1)(b), because not only does it again

not relate to an individual pupil, it also does not

contain any of the information which could be

termed as behavioral.



Just as clearly, the list does not fall within the

contemplation of Section 118.125(1)(c), because it does

not include information pertinent to a pupil's grades,

courses, attendance, or extracurricular activities.



We agree that Section 118.125, Stats., the pupil record

statute, sets forth exceptions to the general rule that

the public has the right to inspect public records

under Section 19.21.



However, the public record in question, the list of

parents' names and addresses, is simply not included

within the operation of the pupil record statute.[fn4]



The list is not related to individual pupils, is not a

behavioral record, and is not a progress record.



We conclude, therefore, that the public record

before this court, the list of parents' names

and addresses, is not a pupil record.
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Thus, Section 118.125(1) does not create an exception

to Section 19.21 which includes a list of parents of

pupils and the parents' addresses.



The School District also takes exception to the court

of appeals' application of the doctrine of expressio

unius est exclusio alterius, because it contends the

definition of "pupil records" does not in any manner

list or enumerate items in its purview.



This doctrine, of express mention and implied

exclusion, was recognized by this court in

State ex rel. West Allis v. Milwaukee L., H. & T. Co.,

166 Wis. 178, 182,

164 N.W. 837 (1917), in which we stated:



     "It is based upon the rules of logic and

      the natural workings of the human mind.



     But it is not to be taken as establishing a

     Procrustean standard to which all statutory

     language must be made to conform.



     On the contrary, it is useful only as a guide

     in determining the probable intention of the

     legislature, and if it should be clearly

     apparent, in any particular case, that the

     legislature did not in fact intend that its

     express mention of one thing should operate

     as an exclusion of all others, then the maxim

     must give way."



Citing Black on the

Interpretation of Laws (2d ed.) 219;



see also,



Columbia Hospital Asso. v. Milwaukee,

 35 Wis.2d 660, 669,

151 N.W.2d 750 (1967);



Gottlieb v. Milwaukee,

 90 Wis.2d 86, 95,

279 N.W.2d 479 (1979).



In Columbia Hospital, supra, we stated that:



     "Factually, there should be some evidence the

     legislature intended its application lest it

     prevail as a rule of construction despite the

     reason for and the spirit of the enactment."



35 Wis.2d at 669.



We need not make the determination of whether the

legislature in Section 118.125, Stats., intended that

an item not specifically mentioned be excluded from the

definition of a pupil record, because the statute

expressly provides that pupil records means



          "all records relating to individual

          pupils maintained by a . . .

          school."
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We have concluded that the list of parents' names

and addresses in question is not a pupil record,

because it does not relate to an individual

pupil or to pupils at all.



The list concerns parents of pupils, with no

correlation made between pupils and parents.



 By no stretch of the imagination can the list be

characterized as a behavioral or progress record

regardless of the enumerations contained within

subsections (b) and (c) of Section 118.125(1).



  We do not rely on the doctrine of expressio unius est

exclusio alterius to hold that the list is not a pupil

record.



 Thus, the question of whether the doctrine should be

applied when construing Section 118.125 is not properly

before this court.



Neither party has advised the court, nor are we aware,

of any limitation which existed under common law which

would act now to bar Hathaway's right to inspect the

public record he requested from the School District.

Thus, under the common law, Hathaway has the right to

inspect the list of parents' names and addresses.



Finally, as previously noted, this court has recognized

that there may exist a situation where the harm done to

the public interest by permitting inspection may

outweigh the public's right to have access to the

public record. Youmans, supra; Beckon, supra;

Newspapers, Inc. v. Breier, supra.



  In order to implement the presumption that the denial

of inspection of a public record is contrary to the

public policy and the public interest, we have set out

legal standards and procedures to which a custodian of

public documents must comply when a member of the

public requests public documents.



When a request for inspection of the public document is

made by a member of the public, the custodian of the

document must "weigh the competing interests involved

and determine whether permitting inspection would

result in harm to the public interest which outweighs

the legislative policy recognizing the public interest

in allowing inspection."
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Newspapers, Inc. v. Breier, 89 Wis.2d at 427; State ex

rel. Journal Co. v. County Court, 43 Wis.2d 297, 305,

168 N.W.2d 836 (1969); Beckon, 36 Wis.2d at 516;

Youmans, 28 Wis.2d at 682.



Should the custodian refuse the request,

he must "state specifically the reasons

for this refusal," whose sufficiency is

subject to scrutiny by the trial court

in the event a court action ensues.



Youmans,

 28 Wis.2d at 682-83;



State ex rel. Journal Co. v. County Court,

 43 Wis 2d at 305;



Newspapers, Inc. v. Breier,

 89 Wis.2d at 427;



State ex rel. Bilder v. Delavan Tp.,

112 Wis.2d 539, 553,

334 N.W.2d 252 (1983).



The court must be satisfied that "the public-policy

presumption in favor of disclosure is outweighed by

even more important public-policy considerations."



Newspapers, Inc. v. Breier, 89 Wis.2d at 427.



Hathaway requested, in his letter dated June 4, 1981,

that he



     "be permitted to examine and copy the names

     and addresses of parents of children in the

     District. The District maintains such

     parental names on address label."



On July 15, 1981, the School District through its

attorney stated that



     "the District takes the position that the

     parent names labels to which you refer do not

     constitute public records as defined by

     Wisconsin law. Therefore, your request for

     examination and copying of such address

     labels is denied."



Again, in its return to petition for writ of

mandamus, the School District stated that

the list was not a public record and was,

therefore, not available to Hathaway.



The custodian of the list of parents' names and

addresses, the School District, failed to state

with specificity its reasons for withholding

the public record.



This makes it impossible for this court to make the

contemplated review to determine whether the public

policy in favor of disclosure is outweighed by even

more important public-policy considerations.



Obviously, plausible and perhaps valid reasons

for withholding the list could have been

specified by the School District.
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However, no reason was given by the

School District for its refusal.



This court has previously stated that:



     It is not the trial court's or this court's

     role to hypothesize reasons or to consider

     reasons for not allowing inspection which

     were not asserted by the custodian.



     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 at 427.



We thus conclude that, where a request for a public

record is made and no statutory exception exists, no

limitations under common law exist, and no specifically

stated sufficient reasons to the contrary are presented

by the custodian, a writ of mandamus must issue

compelling production of the requested public record.



By the Court.  The decision of the court of appeals is

affirmed, and the cause is remanded to the circuit

court for the issuance of the writ of mandamus

compelling the respondent, School District, to produce

for inspection purposes the list of parents' names

maintained by it on address labels as requested by the

petitioner, Hathaway.



[fn1]  Hathaway v. Joint School Dist. No. 1,

       110 Wis.2d 254,

       329 N.W.2d 217 (Ct. App. 1982).



[fn2]  Section 19.21(2), Stats. 1979-80, was repealed

       by Laws of 1981, Chapter 335, Section 9,

       effective January 1, 1983.



       Former Section 19.21(2) has been replaced by

       Sections 19.35 and 19.36(1), 1981-82.



[fn3]  By the Laws of 1981, Chapter 273, Section 1,

       Section 118.125(1)(d) was amended to provide:



       (d) Directory data' means those pupil records

           which include the pupil's name, address,

           telephone listing, date and place of birth,

           major field of study, participation in

           officially recognized activities and sports,

           weight and height of members of athletic

           teams, dates of attendance, photographs,

           degrees and awards received and the name of

           the school most recently previously attended

           by the pupil.



[fn4]  It is not necessary for us to decide whether the

       list in question is included within the

       definition of "directory data,"

       Section 118.125(1)(d), Stats. 1981-82,

       because the general rule is that

       statutes are to be construed as

       relating to future and not to past acts.



       The exception is when a statute is procedural or

       remedial, rather than substantive, in which case

       the statute is generally given retroactive

       effect.



       Gutter v. Seamandel,

       103 Wis.2d 1, 17,

       308 N.W.2d 403 (1981).



       The amendment which added "directory data" to

       the meaning of pupil record is neither

       procedural nor remedial in nature.



       Section 118.125(1)(d) will not be given

       retroactive effect.



LOUIS J. CECI, J. (dissenting).



I respectfully disagree with the holding

of the majority.





Although I agree with the majority's statement that

the general rule is that any party may inspect a

public record, I disagree with the majority's

conclusion because I find that the plain

language of Section 118.125, Stats.,

creates an express statutory

exception to this rule.
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In the seminal case concerning third-party inspection

which was denied by a custodian of public records,



State ex rel. Youmans v. Owens,

 28 Wis.2d 672, 681,

137 N.W.2d 470, 139 N.W.2d 241 (1965),



this court stated that the third-party's right to

inspect public documents at common law is not absolute.



Although the Youmans court recognized the strong public

policy favoring the right of inspection of public

records and noted that denial could occur only in

exceptional cases, the opinion stated that limitations

existed at common law and were not extended by the

public records statute.



Id. at 680-81.



See also,



International Union v. Gooding,

251 Wis. 362,

 29 N.W.2d 730 (1947).[fn1]



In



Newspapers, Inc. v. Breier,

 89 Wis.2d 417,

279 N.W.2d 179 (1979),



this court again addressed the issue of the

third-party's right to inspect public records.



The Breier court stated the following:



     "Nevertheless, we have concluded, where

     common-law limitations on the right to

     examine records and papers have not been

     limited by express court decision or by

     statute, that presumptively public records

     and documents must be open for inspection."



Id. at 426.  (Emphasis added.)





The language of Section 19.21(2), Stats. 1979-80,

is consistent with this conclusion.



It states that, "Except as expressly provided

otherwise," public records and documents must be

subject to examination.



Clearly, then, the right to examine documents

may be limited by statute.



The majority recognizes that the public's right to

examine records may be limited by statute, but

nevertheless states that not all records

concerning pupils are to be confidential.



Rather, the majority opinion declares that only records

"relating to individual pupils," as set forth in

Section 118.125(1)(a), Stats., are to be

maintained confidentially.
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Because the majority concludes that a list of the names

of parents of pupils does not relate to the individual

pupils, they hold that it is not a public record.



However, I find this conclusion to be contrary

to the plain language of the statute.



Section 118.125(1)(a) defines "Pupil records" to mean

"all records relating to individual pupils. . . ."



(Emphasis added.)  Section 118.125(2) further provides

that "All pupil records maintained by a public school

shall be confidential. . . ."



I do not believe that the legislature could have stated

it more plainly.  Section 118.125 provides for the

confidentiality of all pupil records.



Simply because this list containing the parents' names

and addresses has been computerized and no longer

contains the pupils' names does not make it

separate and distinct from the pupils' records.



The list was derived from and remains

a part of the pupil record.



Therefore, consistent with the reasoning of the Breier

court and Section 19.21(2), the right to examine

this list has been limited by the statute.



I also believe that this interpretation is

consistent with the development of the

law concerning pupil records.



A Wisconsin Law Review which analyzed both Section

118.125 and its federal corollary, the Family

Educational Rights and Privacy Act of 1974, stated the

following concerning the passage of the two acts:



     "In the 1970's, various studies of school

     record keeping revealed administrative

     practices which threatened the privacy

     interests of students and their parents. . . 

     Further, the studies revealed that little

     attention was given to the development of

     consistent policies by school administrators

     to balance the family's privacy interests

     against the schools' needs for information

     and third-party requests for that

     information."



Comment, Access to Student Records in Wisconsin:

A Comparative Analysis of the Family Educational Rights

and Privacy Act of 1974 and Wisconsin Statute

Section 118.125, 1976 Wis. L. Rev. 975-76.
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As a result of these studies, both the federal and

Wisconsin statutes were passed in order to protect the

privacy interests of the students and their families.



Id.



I believe that it is virtually impossible to separate a

list of parents' names from the protection intended by

the statute, that of the student's and family's privacy

interests.



Although the requested list appears to be innocuous

enough on its face, I believe that providing access to

information tabulated from pupil records undercuts the

legislative purpose of the statute, which is to protect

the privacy interests of the student and the family.



What the majority fails to take into account is that by

removing the student's name from information taken from

the pupil records, lists assembled by the school for

any reason would no longer be protected by the statute.



Thus, a list of families of students with special

learning disabilities could be examined and copied by

third parties.



There is the danger that such "stigmatizing"

information could be somehow correlated with the

individual pupil possessing such a disability, or with

the pupil's family, thus circumventing the privacy

rights which the legislature sought to protect.



As the Comment notes:



     "Students and their parents are interested in

     ensuring that the school does not intrude

     upon their privacy by abusing collection data

     procedures.



     This interest is protected . . . by the

     implementation of safeguards  such as the

     provision of parental access to student files

     and the exertion of control over the release

     of those files to third parties  designed to

     protect the student from the collection and

     dissemination of misleading, stigmatizing

     information."



Comment, Access to Student Records in Wisconsin:

A Comparative Analysis of the Family Educational

Rights and Privacy Act of 1974 and Wisconsin Statute

Section 118.125, 1976 Wis. L. Rev. 975, 979.
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The language of Section 118.125 indicates that the

definition of pupil records is clearly

all-encompassing, because the legislature chose to use

the words "all records relating to individual pupils."



The legislature did not restrict the statute's purview

by utilizing words such as "all personal records

relating to individual pupils."



There is nothing in the statute indicating that it

protects only personal information about the pupils.



Although the majority attempts to construe "behavioral

records" and "progress records," as defined by Section

118.125(1)(b) and (c), to relate to the term "records

relating to individual pupils," I believe that the

purpose behind the use of these terms is to clarify

special circumstances in which parents, students, and

third parties may gain access to the pupil records.



For example, Section 118.125(2)(b) provides for adult

pupils or parents of minor pupils to be shown

behavioral records in the presence of a person

qualified to explain and interpret the records.



This provision has been explained as representing "a

careful balancing of potentially conflicting interests: 

the parent's interest in reviewing sensitive, possibly

stigmatizing information, and the school's interest in

avoiding misunderstanding and disruption of the

parent-school relationship."



Comment, Access to Student Records in Wisconsin,:

A Comparative Analysis of the Family Educational Rights

and Privacy Act of 1974 and Wisconsin Statute Section

118.125, 1976 Wis. L. Rev. 975, 991.



Thus, it appears that the legislature chose to define

certain types of pupil records in order that it could

clearly set out the circumstances in which the parent,

child, or third party could gain access to pupil

records, while keeping in mind the competing

interests of all the parties involved.
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What the majority fails to consider is that Section

118.125 begins by defining pupil records as "all

records relating to individual pupils," and after

providing definitions of certain types of records

included within this all-encompassing definition,

again states that, "All pupil records maintained

by a public school shall be confidential,

except as provided in pars. (a) to (h)."



These subsequent paragraphs delineate the specific

circumstances in which parents, children, or other

third parties may gain access to the records.



Therefore, it is clear to me that the sole purpose

behind the utilization of these specific terms is not

to restrict the definition of pupil record, but rather

to provide for the limited situations in which others

may gain access to portions of the pupil record.



I believe that it is error for the court to cut away at

the protections intended by Section 118.125 by so

narrowly construing its purview, despite the

legislature's deliberate use of the broadest possible

language concerning "all pupil records."



Therefore, I dissent.



[fn1] The public records statute was

      formerly Section 18.01, Stats.
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