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.).)
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.
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.
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.
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.
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.
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]
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.
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.
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.
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,"
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.
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.
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."
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."
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.
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. Ä 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.
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.
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.
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 Ä such as the
provision of parental access to student files
and the exertion of control over the release
of those files to third parties Ä 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.
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.
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.