STATE EX REL. LANK v. RZENTKOWSKI, 141 Wis.2d 846 (Ct.App. 1987) 416 N.W.2d 635
848 849 850 851 852 853 854 855 856 857 858
STATE of Wisconsin EX REL. Dannette H. LANK and the Milwaukee Metropolitan Sewerage District, a municipal body corporate, Petitioners-Appellants, v. Louise RZENTKOWSKI, in her official capacity as custodian of records for the City of Mequon, Respondent.[fn]
Court of Appeals No. 87-0718. Submitted on briefs August 26, 1987. Decided October 7, 1987. [fn] Petition to review denied.
PAGE 848
APPEAL from an order of the circuit court for Ozaukee county: 

JOSEPH D. McCORMACK, Judge. Reversed and cause remanded with


On behalf of the petitioners-appellants, the cause was submitted

on the briefs of Michael J. McCabe and David S. Branch of

Milwaukee Metropolitan Sewerage District.

On behalf of the respondent the cause was submitted on the brief

of Truman Q. McNulty, Thomas E. Griggs and Daniel M. Leep of

Mulcahy & Wherry, S.C., of Milwaukee.

Before Scott, C.J., Brown, P.J., and Nettesheim, J.


The issue in this case is whether the Milwaukee Metropolitan

Sewerage District (MMSD) is entitled to certain public records in

the custody of Louise Rzentkowski, the city clerk for the City of

Mequon (Mequon), pursuant to Wisconsin's Public Records Law,

Section 19.31 et seq., Stats.

 Because these records pertained to certain other pending

litigation in Waukesha county involving MMSD and certain

municipalities, including Mequon,[fn1] and because the discovery

cutoff deadline in that action had expired before the demand for

the records was made in this case, the circuit court dismissed

MMSD's mandamus action seeking to compel production of the

PAGE 849
We conclude that the public records law entitles MMSD to the

materials requested.

Therefore, we reverse the judgment of the circuit court and

remand with directions to issue the writ of mandamus against the

city clerk.[fn2]

MMSD is a quasi-municipal corporation which provides sewerage

treatment and disposal services to approximately twenty-eight

Milwaukee area municipalities.

 MMSD is currently engaged in a fifteen-year water pollution

abatement program designed to upgrade and rehabilitate the

district's sewerage system.

 In an effort to recover the capital cost for the project, MMSD

sought to levy property value-based capital charges against

Mequon and the other municipalities which MMSD services outside

Milwaukee county.
PAGE 850
In late 1979, the Mequon common council created a Blue Ribbon

Commission to study and evaluate the impact of MMSD's proposed

program on the city.

The commission collected and evaluated data and met with

representatives of the district concerning the cost impact of the

program upon the city and its citizens.

 The minutes and other documents used or created by this

commission are the subject of this mandamus action by MMSD.

In February 1983, Mequon and its sister municipalities commenced

the Waukesha county action challenging MMSD's proposed capital

cost recovery procedures.[fn3]  The scheduling order in that

action provided a discovery cutoff date of May 31, 1986.

Eight months after this deadline, MMSD wrote a letter to Mequon

seeking production of the minutes and other documents created or

used by the commission.

The request was made "[p]ursuant to the State Open Records Acts,

19.31 et seq. . . . ."

This request came less than three months before the then

scheduled trial date in the Waukesha county action.

After consultation with its counsel, Mequon inquired of MMSD

whether the request was related to the Waukesha county


MMSD did not directly respond to this inquiry.  Mequon then

formally denied the request, citing the pending litigation

between the parties.

MMSD responded with this mandamus action seeking to compel the

production of the commission's records.
PAGE 851
The trial court, in dismissing MMSD's mandamus action, concluded

that ordering the production of the records after the expiration

of discovery deadlines would constitute an impermissible "end

run" around the scheduling order in the Waukesha county action.

 The court concluded that "the orderly administration of justice

and the processing of cases would be severely hampered."

The court also expressed concern that:

"the principal lawsuit would be bogged down by reason of claims

that it could not go forward until collateral matters were

litigated in other courts and the supervising court over the

principal lawsuit would lose all control over what action the

parties were taking to obtain information from one another."

A writ of mandamus is a discretionary writ in that it lies within

the sound discretion of the trial court to either grant or deny.

Miller v. Smith, 100 Wis.2d 609, 621, 302 N.W.2d 468, 474 (1981);

State ex rel. North v. Goetz, 116 Wis.2d 239, 243, 342 N.W.2d

747, 749 (Ct. App. 1983).

An abuse of discretion occurs when the discretionary

determination is premised upon an erroneous view of the law.

North at 245, 342 N.W.2d at 750.

The issue in this case is whether the trial court correctly

concluded that the public records law did not apply to this fact

situation, thus rendering correct its exercise of discretion that

the writ of mandamus should not issue.

Whether a statute applies to a given set of facts presents a

question of law.

State v. Kennedy,

134 Wis.2d 308, 319,

396 N.W.2d 765, 769 (Ct. App. 1986).
PAGE 852
Such questions are decided independently without deference to the

trial court's decision. Id.

A cardinal rule of statutory construction or application is that

an interpretation that effects the purpose of an act is favored

over one that defeats the act's manifest object.

Harbick v. Marinette County, 138 Wis.2d 172, 175-76, 405 N.W.2d

724, 726 (Ct. App. 1987).

The legislature has expressly declared the policy underlying the

public records law:

In recognition of the fact that a representative government is

dependent upon an informed electorate, it is declared to be the

public policy of this state that all persons are entitled to the

greatest possible information regarding the affairs of government

and the official acts of those officers and employes who

represent them.

Further, providing persons with such information is declared to

be an essential function of a representative government and an

integral part of the routine duties of officers and employes

whose responsibility it is to provide such information.

Sec. 19.31, Stats.

We begin our analysis by recognizing, as did the trial court, a

number of principles which apply in a public records case:  a

presumption exists that the public has a right to inspect public

records, Newspapers, Inc. v. Breier, 89 Wis.2d 417, 426, 279

N.W.2d 179, 183-84 (1979); Oshkosh Northwestern Co. v. Oshkosh

Library Bd., 125 Wis.2d 480, 482, 373 N.W.2d 459, 461 (Ct. App.

1985), the denial of public access is contrary to the public

interest and is allowed only in an exceptional case.
PAGE 853
Hathaway v. Joint School District No. 1,

116 Wis.2d 388, 396,

342 N.W.2d 682, 686 (1984);

Oshkosh Northwestern at 482, 373 N.W.2d at 461, and exceptions

to the general rule of disclosure must be narrowly construed,

Hathaway at 397, 342 N.W.2d at 687.

Mequon contends that language of Section 19.35(1)(j), Stats.,

constitutes an exception to the requirement of disclosure.

This section provides:

               Notwithstanding paragraphs 19.35(1)(a) to

               19.35(1)(f), a requester shall comply with

               any regulations or restrictions upon access

               to or use of information which are

               specifically prescribed by law.

Mequon also contends that because Section 19.35(1)(a) through (f)

each contain the introductory language "[e]xcept as otherwise

provided by law," a legislative exception to the general

requirement of disclosure is provided.

However, the discovery statutes, Chapter 804, Stats.,

nowhere specifically deal with public records.

The fact that the discovery statutes could be utilized

to obtain public records does not alter this fact.

As such, the rule of statutory construction that the specific

statute will control over the general, Liles v. Employers Mut.

Ins., 126 Wis.2d 492, 504, 377 N.W.2d 214, 220 (Ct. App. 1985),

leads us to conclude that the legislature has not carved out

an exception to the requirement of disclosure when the

public records sought are germane to pending litigation

between the requester and the public entity.

We so conclude particularly bearing in mind the

admonishment of our supreme court that exceptions

to the general rule of disclosure are to be

narrowly construed and allowed only

in exceptional cases.
PAGE 854
Hathaway, 116 Wis.2d at 396-97, 342 N.W.2d at 686-87.

A measure of practicality also enters into

our consideration of this issue.

Mequon would exempt private and citizen litigants from

the right to disclosure of public records if the

materials sought potentially relate to a matter

under litigation between the parties.

But circumvention of the statute under such an interpretation

could be accomplished with ease and impunity.

Nothing in Mequon's argument would preclude a person,

not a party to the underlying litigation, from rightfully

demanding the materials and then turning them over to

the litigants who otherwise would be denied them.

The interpretation urged by Mequon would encourage

surreptitious circumventing of the statute.

We are hesitant to adopt an interpretation which

reduces a law to such unenforceable stature and

holds it out to ridicule rather than respect.

In light of this conclusion, we address the concerns voiced by

the trial court concerning the effect of permitting discovery

upon the trial of the underlying action  in this case the

Waukesha county action.

While the trial court properly addressed these matters,

we think its concerns are somewhat overstated.

Parties to litigation routinely obtain material and

information relevant to the proceeding by

methods beyond the discovery process.

The fact that such information is obtained by a nondiscovery

process does not mean the party is not entitled to it.

Indeed, in most instances, the opposing party would

not even be in a position to prevent it.

The only reason this issue surfaces in this case

is because the source of the information sought

happens also to be a party in the underlying

action in Waukesha county.
PAGE 855
This does not, however, operate to make the method by

which MMSD seeks to obtain these public records under

Chapter 19, Stats., the equivalent of discovery under

Chapter 804, Stats., and therefore subject

to the discovery deadlines.

It is critical to note that nothing in our holding here directly

affects the scheduling order in the Waukesha county action nor

the right of the trial court in that matter to enforce it.

While the ability to obtain these materials could conceivably

prompt a request by MMSD to seek some modification of the

scheduling order, such a matter is properly left to the trial

court in that action and the resolve with which that trial court

chooses to enforce its scheduling order.

 The fact remains, for purposes of this action, that while MMSD's

public records request is certainly prompted by a desire to

obtain information possibly relevant to the Waukesha county

action, it is not formal discovery within the meaning of Chapter

804, Stats.

Our conclusion, we acknowledge, brings us into conflict with an

Attorney General's opinion which the trial court cited in support

of its holding, 74 Op. Att'y Gen. 1 (1985).[fn4]  While such

opinions are helpful in resolving legal issues, we note that they

stand only as persuasive authority as to the meaning and purposes

of statutes.

See State v. Wachsmuth,

 73 Wis.2d 318, 323,

243 N.W.2d 410, 413 (1976);


116 Wis.2d at 244, 342

222 N.W.2d at 750.
PAGE 856
Here, we respectfully disagree with

the Attorney General's opinion.

We do so not only on the basis of our reasoning already

recited, but also upon a flaw in the opinion itself.

The Attorney General correctly notes the general rule that

     "[a]n exception to the general right of access to

     public records must be established specifically by

     statute or common law limitation."

74 Op. Att'y Gen. at 2.

The opinion goes on to cite various examples of such specific

exceptions but then observes,

     "I am not aware of any specific statute or common law

     limitation which generally exempts records from the

     public records law because they relate to pending

     litigation and are subject to civil discovery."

Id. Yet, even in the absence of such specificity concerning

public records, the opinion concludes that such

records are subject to discovery rules.

We reject this reasoning of the Attorney General and conclude

that it is of no persuasive effect in this case.[fn5]

Finally, Mequon argues that MMSD's mandamus action

was properly rejected by the trial court because

MMSD had another adequate remedy at law.
PAGE 857

State ex rel. Morgan v. Risjord,

177 Wis. 290, 293,

188 N.W. 495, 496 (1922).

Mequon reasons that MMSD could have sought leave

of the trial court in the Waukesha county action

to conduct discovery into the requested records.

However, Mequon never claimed in the trial court

that some other adequate legal remedy was available

to MMSD in order to obtain these records.

Such a failure operates as a waiver in a mandamus action.

Law Enforcement Standards Bd. v. Village of Lyndon Station,

101 Wis.2d 472, 496,

305 N.W.2d 89, 101 (1981).

Alternatively, we question whether the remedy at law suggested

by Mequon satisfies the requirements of mandamus law.

Such a remedy must not only be adequate,

but also must be plain and complete.

State ex rel. Thomas v. State,

 55 Wis.2d 343, 349,

198 N.W.2d 675, 678-79 (1972).

We have previously noted that the judge assigned to the

Waukesha county action is entitled to enforce the

scheduling order in that action with resolve.

The court in that action could be well within its discretionary

rights in denying an application by MMSD for

relief from the discovery order.

In the face of Section 19.37(1), Stats., which expressly provides

mandamus as the remedy for a failure to deliver up a public

record for inspection, we conclude that the alternative

remedy suggested by Mequon is neither plain, adequate

or complete within the meaning of Thomas.

By the Court. Order reversed and cause remanded with directions.

[fn1]     The Waukesha county action,

          Case No. 83-CV-296, is entitled:

          City of Brookfield,

          Village of Butler,

          Village of Menomonee Falls,

          City of Mequon,

          City of New Berlin,

          Village of Elm Grove,

          City of Muskego,

          Village of Germantown,

          Village of Thiensville,

          Richard E. Enssling,

          Donald Wenzel and

          Raymond Gray


          Milwaukee Metropolitan Sewerage District.

[fn2]     We have examined the record to determine whether remand

          in this case should be for purposes of further

          proceedings rather than for issuance of the writ.

          Although the pleadings arguably draw some collateral

          issues, an examination of the proceedings at trial

          reveals that the only issue placed before the circuit

          court was that which forms the basis for this appeal.

          No other issues remain to be tried between the parties.

          Therefore, we conclude that a remand with directions

          to issue the writ is appropriate.

[fn3]     The municipalities are challenging MMSD's attempt to

          obtain and exercise authority to levy charges against

          them by one of two mutually exclusive means:

          (1)  expanding MMSD's boundaries to include the

               municipalities and levy property taxes

               directly; or

          (2)  if the municipalities remain outside MMSD's

               boundaries, assessing capital charges against

               the municipalities based on their respective

               property valuations rather than on a

               volumetric basis.

[fn4]     Although we disagree with the trial court's conclusion,

          we do not accept MMSD's argument that the court

          improperly relied upon the Attorney General's opinion.

          We do not see the court's decision as relying upon

          the opinion in the sense of being bound by it.

          In fact, the court's decision correctly

          acknowledges that such opinions are

          merely persuasive in certain instances.

          Rather, we read the court's decision as stating

          that it found itself in agreement with the analysis

          of the issue by the Attorney General.

[fn5]     We also disagree that the United States Supreme Court

          interpretations of the Freedom of Information Act

          (FOIA) control this question.

          We acknowledge that the Wisconsin appellate courts have

          looked to federal court decisions interpreting the FOIA

          as "persuasive authority" for interpreting Wisconsin's

          open records law.

          See  Racine Educ. Ass'n v. Board of Educ.,

               129 Wis.2d 319, 326,

               385 N.W.2d 510, 512 (Ct. App. 1986).

          However, the claim that United States v. Weber Aircraft

          Corp., 465 U.S. 792 (1984), controls the issue here is


          Weber held that certain material could not be

          discovered because privileged, therefore falling

          within an express exemption of the FOIA.

          Mequon's expansive reading of Weber is not warranted.
PAGE 858