MILWAUKEE JOURNAL v. UW BOARD OF REGENTS,

163 Wis.2d 933 (Ct.App. 1991)

472 N.W.2d 607                  CONTENTS






THE MILWAUKEE JOURNAL, and Dennis Chaptman, Plaintiffs-Respondents, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Donna Shalala, Chancellor of the University of Wisconsin-Madison, and Hugh V. (Pat) Richter, Athletic Director of the University of Wisconsin-Madison, Defendants-Appellants.

Court of Appeals No. 90-0205.



Submitted on briefs November 8, 1991.



Decided June 27, 1991.






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APPEAL from a judgment of the circuit court for Dane

county:  DANIEL R. MOESER, Judge.  Affirmed.



For the defendants-appellants the cause was submitted

on the briefs of Melany Stinson Newby of Office of

Administrative Legal Services of Madison.



For the plaintiffs-respondents the cause was submitted

on the brief of Linda M. Clifford of LaFollette &

Sinykin of Madison.



Before Eich, C.J., Dykman and Sundby, JJ.



EICH, C.J.



The University of Wisconsin Board of Regents and other

university officials (collectively, "the university")

appeal from a judgment ordering them to disclose the

names of applicants for the positions of athletic

director and football coach at the University of

Wisconsin-Madison.



The issue is whether Section 230.13(2), Stats., which

authorizes the secretary of the Department of Employee

Relations (DER) to keep records of the "names of

applicants other than those certified for

employment"[fn1] closed to the public, constitutes a

mandatory exception to the state's open records law

shielding the names of applicants for unclassified

positions in the state service from public disclosure.



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We conclude that it does not and affirm the judgment.



The facts are not in dispute.



In 1989, the University of Wisconsin fired its athletic

director, reassigned its football coach to other duties

and began recruiting to fill both positions.



Both are unclassified positions in the

state civil service system.



The Milwaukee Journal sought access to the names of

applicants for the two positions, filing a written

request for the information with the Madison campus

chancellor Donna Shalala.



Shalala denied the request, taking the position that

all records of the applicants' names were closed

under Section 230.13(2), Stats.



The Journal then filed a mandamus action

seeking release of the information.



The university's position remained the same:

Its answer to the complaint asserted that

Section 230.13(2)



     "required closure of the records. . ."



The trial court ruled that Section 230.13(2), Stats.,

did not apply to the positions, and that even if

it did, the university, in deciding to deny

access to the requested information, had

failed to exercise the discretion required

by the statute's permissive language



("may keep the records . . . closed to the public").



The university appeals, repeating

the arguments made below.



Like the trial court, we see Section 230.13(2), Stats.,

as inapplicable to the two positions, and we conclude

that the statute neither mandates nor authorizes

closure of the records.



Wisconsin has a strong public policy of openness

in government which is embodied in the

state's open records law:



     DECLARATION OF POLICY.



     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 . . . duties of officers and employes . . . . 

     To that end, [the open records laws] shall be

     construed in every instance with a presumption of

     complete public access, consistent with the

     conduct of governmental business.



     The denial of public access generally is contrary

     to the public interest, and only in an exceptional

     case may access be denied.



Section 19.31, Stats.

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In light of that policy,



     "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."



Hathaway v. Joint School Dist. No. 1 of Green Bay,

116 Wis.2d 388, 397,

342 N.W.2d 682, 687 (1984).



The university does not claim that any common-law rule

limits application of the open records law to the

Journal's request, nor does it argue that some

"overriding public interest" demands secrecy.



As indicated, it bases its refusal to allow access to

the information entirely on Section 230.13(2), Stats.,

which it claims provides a specific and mandatory[fn2]

public-records-law exemption for the names of

applicants for jobs in the unclassified state service.

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We begin our consideration of the university's

argument with the proposition that any exception

to the "general rule" of openness and disclosure

must be "narrowly construed."



Oshkosh Northwestern Co. v. Oshkosh Library Bd.,

125 Wis.2d 480, 482,

373 Wis.2d 459, 461 (Ct. App. 1985).



Exceptions [to openness] 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.



Hathaway, 116 Wis.2d at 397, 342 N.W.2d at 687 .



We see no such "clear," "explicit" or "unequivocal"

exception in Section 230.13(2), Stats.



Chapter 230, Stats., embodies the

state's employment relations law.



Among other things, it establishes a civil service,

provides for the hiring and firing of state employees

and generally governs their evaluation and overall

treatment.



DER, through its secretary, administers the law.



Chapter 230, Stats., divides state employment into

two categories:

                 the "classified" service and

                 the "unclassified" service.



Section 230.08.  The unclassified service comprises

positions specifically designated in Section 230.08(2).



Generally, the list includes elected officials

and officers appointed by the governor, deputy

departmental secretaries, division administrators

and a variety of other mostly policy-making or

administrative positions.



As for the university, all faculty and academic staff

positions including the athletic director and

football coach are unclassified.



Section 230.08(2)(d).

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The classified service is defined in the

statute as:

               " all positions not

                 included in the

                 unclassified service. "



Section 230.08(3), Stats.



Generally, the classified service comprises those

labor, clerical, technical and professional positions

involved in the day-to-day workings and operations of

state government; and the bulk of Chapter 230 sets

forth in detail the recruitment, application,

examination, certification, hiring, promotion and

termination processes applicable to such employees.



Appointments to positions in the classified service

are made pursuant to a "merit" selection plan

based upon competitive examinations.



Section 230.15(1), Stats.



The examinations are part of a process culminating in

the "certification" of the top five applicants for a

particular position to the appointing authority; and

Section 230.25(2) directs that the final appointment



        " shall be made . . . to all

          positions in the classified

          service from among those certified. . ."



Sections 230.25(1) and (2).



Unlike positions in the classified service, there is no

examination or certification process for filling

unclassified positions in government.



The legislature has given the employing authority

here the university full discretionary authority to

appoint to these positions.



With that background in mind, we turn to Section

230.13(2), Stats., which, as indicated, allows

the DER secretary to keep confidential the

names of applicants for state jobs



       " other than those who have

         been certified for employment. "



We believe the statutory language can

be read in at least two ways.



It can be read to allow the names of all persons

applying for state employment whether in the

classified or unclassified service who have not been

certified for employment to be kept confidential.



Because the certification process is limited to

classified positions no applicants for positions

in the unclassified service are ever certified.

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Thus, reading the statute in this manner would permit

withholding the names of all applicants for any

unclassified position in state service (including that

of athletic director and football coach) as persons

"other than those certified for employment."



But the statute may also be read to

reach the opposite result.



And, mindful of our obligation to construe

claimed exceptions to the open records law

narrowly, we adopt that reading.



We believe the statute's specific reference to

applicants who are "certified for employment" would

have little meaning if it were intended to encompass

two categories of positions, one having a certification

process and one not.



As we have noted, certification is a means of

narrowing the field of applicants for positions

within the classified service.



It has no application or meaning with respect

to unclassified positions.



It follows that the legislature's use of such a

designation reasonably may be read to limit the

application of Section 230.13(2), Stats.,

to classified positions.



Thus, as we read the statute, the only names that may

be withheld from public scrutiny under its provisions

are those of applicants for classified positions who

were not certified for employment.



The statute simply does not apply to positions

in the unclassified service.



So read, the statute reflects what we believe to be a

reasonable legislative judgment that while there might

be valid reasons to give the secretary some discretion

to allow the names of that large group of initial

applicants for classified jobs to be kept confidential,

the state has no business shielding the names of the

finalists for public positions from public view.



It makes no sense to us to read the statute, as the

university and the dissenting opinion do, to keep

secret the names of all applicants who did not survive

the first stages of the hiring process for the

day-to-day operational jobs in the classified service

and also the names of those applicants comprising the

group from which the occupants of some of the most

influential policy-making positions in government are

selected leaving only those people certified for the

day-to-day jobs exposed to public scrutiny.
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We decline the university's invitation to construe

Section 230.13(2), Stats., to grant persons applying



for these top-level policy-making government positions

persons appointed and paid to serve the public at the

highest levels of government the right to keep secret

from the public the very existence of their

applications.



The language of Section 230.13(2), Stats., does not

"explicitly" or "unequivocally" exempt the names of all

applicants for positions in the unclassified service

from the open records law, and we will not interpret or

construe it to do so.



Hathaway, 116 Wis.2d at 397, 342 N.W.2d at 687.



We agree with the Journal that the absence of any clear

direction in Section 230.13(2), that secrecy is

mandated for applications for high-level government or

university positions such as those at issue here, is

strong evidence of the legislature's intent that the

public interest in an open appointment process must

take precedence over whatever public policy

considerations might favor secrecy.[fn3]
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Whether, as the university maintains, the names of

applicants for university positions and indeed all

unclassified positions in the state service should be

shielded from public view is a question of broad public

policy properly directed to the legislature.



If the university desires a blanket rule mandating

secrecy for the names of job applicants at any level,

it should press its case in the legislature, rather

than asking the courts to rule contrary to the

expressed public policy of the state by creating an

exception to the open records law through the

interpretation of an ambiguous statute.[fn4]
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Consistent with our obligation to narrowly construe

purported exceptions to the state's open records law,

we hold that Section 230.13(2), Stats., neither

mandates nor authorizes withholding the names

of those persons applying for the positions

of athletic director or football coach.



The statute applies solely to classified civil-service

positions, and the trial court properly granted

judgment in the Journal's favor.[fn5]
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By the Court. Judgment affirmed.



[fn1]  The precise language of pertinent portions of

       Section 230.13, Stats., is as follows:

          

       "The secretary . . . may keep records of the

       following personnel matters closed to the

       public: . . . (2) Names of applicants other

       than those certified for employment."



[fn2]  As we discuss in greater detail at note 5,

       Section 230.13(2) is built upon the

       permissive "may" ("the secretary may keep . .

       . closed"), and we believe that fact alone

       belies the university's claim that it

       provides a mandatory exception to the open

       records law.



       In any event, we hold in this opinion that,

       whatever the statute's import in this regard,

       it is inapplicable to the two positions.



[fn3]  The university also contends that the DER

       secretary has interpreted the statute as a

       blanket exemption from the open records law

       for applicants for unclassified positions in

       the civil service, and that that

       interpretation is entitled to deference.

       We disagree on both points.



       First, the "interpretation" is a 1985 DER

       "departmental bulletin" a document signed

       by a DER division administrator which the

       trial court found was ambiguous at best and

       most likely did not even apply to applicants

       for unclassified positions.



       The bulletin purports to list two categories

       of records:  (1) "Records of Classified

       Employes which are Considered to be Open";

       and (2) "Records Closed to the Public."



       The administrator has included in the latter

       group "materials used for evaluating an

       applicant for employment," citing Section

       230.13, Stats., as authority for the

       inclusion.



       We agree with the trial court that a fair

       reading of the bulletin and the manner in

       which it is organized and headed indicates

       that the listing applies only to records of

       classified employees.



       Second, the deference paid by courts to the

       interpretation of statutes by administrative

       agencies "is the result of a course of

       uniform interpretation over a period of

       time."



       Local 695 v. LIRC,

       154 Wis.2d 75, 84,

       452 N.W.2d 368, 372 (1990).



       Thus the rule of deference does not apply

       "unless the administrative practice is long

       continued, substantially uniform and without

       challenge by governmental authorities and

       courts."



       Id. at 83, 452 N.W.2d at 372 (citations

       omitted).



       Where as is the case here "there is no

       evidence of any special expertise or

       experience, the weight to be afforded an

       agency interpretation is no weight at all."



       Id. at 84, 452 N.W.2d at 372.



[fn4]  For other cases holding that exemptions from

       public records laws are public policy

       determinations to be made by legislatures,

       not courts, see Board of Regents v. Atlanta

       Journal, 378 N.E.2d 305 (Ga. 1989); City of

       Dubuque v. Telegraph Herald, Inc., 297 N.W.2d

       523, 527 (Iowa 1980); Hubert v. Harte-Hanks

       Texas Newspapers, Inc., 652 S.W.2d 546, 551

       (Tex. App. 1983); Forum Publishing Co. v.

       City of Fargo, 391 N.W.2d 169, 171 (N.D.

       1986); and Attorney General v. School

       Committee of Northampton, 375 N.E.2d 1188,

       1190 n.3 (Mass. 1978).



[fn5]  We also agree with the trial court that even

       if Section 230.13(2), Stats., were held to

       apply to applicants for unclassified

       positions such as athletic director or

       football coach, the plain language of the

       statute "the secretary . . . may keep

       records . . . closed" commits that

       authority to the secretary's discretion.



       The word "may" generally is construed as

       permissive, not mandatory, unless a contrary

       reading is required to carry out the intent

       of the legislature.



       State v. Christopherson,

        36 Wis.2d 574, 583-84,

       153 N.W.2d 631, 637 (1967).



       Here, as we have indicated, the intent of the

       legislature and the rule of the courts is

       that exceptions to public disclosure are to

       be construed narrowly, and we see no

       indication in Section 230.13(2) that it was

       intended to be a mandatory, rather than a

       permissive, exemption.



       And no public officer or employee may shield

       a public record from inspection except in

       cases where the public interest in

       confidentiality outweighs the public interest

       in openness.



       "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 417, 427,

       279 N.W.2d 179, 184 (1979)



       If a records custodian decides not to allow

       inspection, he or she "must state specific

       public-policy reasons for the refusal . . .

       and satisfy the court that the public-policy

       presumption in favor of disclosure is

       outweighed by even more important public

       policy considerations . . . ."



       Id.



       It is a case-by-case balancing of competing

       interests; and in any case "if the custodian

       gives no reasons or. . . insufficient reasons

       for withholding a public record, a writ of

       mandamus compelling the production of the

       records must issue."



       Id.



       No such balancing was undertaken here.



       Chancellor Shalala, citing only Section

       230.13(2), Stats., flatly refused to disclose

       the information.



       Thus, even if the statute were held to apply,

       the university has failed to exercise its

       discretion in the matter and the trial court

       properly ordered disclosure of the names.





       Finally, we reject any suggestion in the

       university's brief that the DER

       administrator's "bulletin" (see note 3,

       supra) constitutes an appropriate exercise of

       discretion which we should uphold.



       The exercise of discretion is not the

       equivalent of "unfettered decisionmaking."



       Hedtcke v. Sentry Ins. Co.,

       109 Wis.2d 461, 471,

       326 N.W.2d 727, 732 (1982).



       It must be "more than an unexplained choice

       between alternatives."



       Argonaut Ins. v. LIRC,

       132 Wis.2d 385, 391,

       392 N.W.2d 837, 839 (Ct. App. 1986).



       "Unless there is evidence that the

       decisionmaker has undertaken a reasonable

       inquiry and examination of the facts as the

       basis of his or her decision, that decision

       will be disregarded by this court.



       Such a decision on its face shows an abuse of

       discretion for failure to exercise

       discretion."



       Id. at 392,



       392 N.W.2d at 839-40,



       quoting



       McCleary v. State,

        49 Wis.2d 263, 277-78,

       182 N.W.2d 512, 520 (1971).



       And in cases involving the withholding of

       public records from public scrutiny, the

       exercise of discretion must also involve, as

       we have noted earlier in this opinion, a

       balancing of competing public policy

       interests.



       In any guise, the exercise of discretion is

       much more than a column listing in a

       departmental bulletin accompanied only by a

       nonspecific statutory reference.



SUNDBY, J. (dissenting).



The Milwaukee Journal's petition for writ of mandamus

is misdirected.  The Board of Regents, the UW-Madison

chancellor and the UW-Madison athletic director have

no discretion to release the names of applicants for

the positions of athletic



director or head football coach at the UW-Madison

because the Department of Employment Relations has

closed these records pursuant to Section 230.13(2),

Stats.  I therefore respectfully dissent.
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Section 230.13, Stats., provides:



Closed records.



The secretary and the administrator may keep records of

the following personnel matters closed to the public:



(1)  Examination scores and ranks and other evaluations

     of applicants.



(2)  Names of applicants other than those certified for

     employment.



(3)  Dismissals, demotions and other disciplinary

     actions.



(6)  Pay survey data obtained from identifiable

     nonpublic employers.



(7)  Names of nonpublic employers contributing pay

     survey data.



Pursuant to this section, the department issued

bulletins closing applicants' personnel records

which contain materials used for evaluating an

applicant for employment, including the Applicant

Registration Form and reference materials.



Department of Employment Relations Bulletin P-157

(Dec. 28, 1982); Bulletin MRS-19 (Apr. 26, 1985).



The university officials contend that the department

thereby closed to the public the names of applicants

for the positions of athletic director and

football coach.



The majority concludes that Section 230.13(2), Stats.,

applies only to employees in the state classified

service and did not authorize the department to close

to the public the names of applicants for the positions

of athletic director and football coach.



I disagree.



The majority creates an ambiguity in Section 230.13(2),

Stats., where none exists and cures the ambiguity by

adding words to an unambiguous statute.
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I am unable to find anything in the language of Section

230.13(2) which justifies the majority's action.



On its face, Section 230.13(2) is not limited to the

classified service.  It is located in Subchapter II,

entitled "Civil Service."



"Civil service" "means all offices and positions of

trust or employment in the service of the state,"

except the militia.



Section 230.03(6), Stats.



The civil service includes the classified service

and the unclassified service.



Section 230.08(1), Stats.



It is undisputed that the positions of athletic

director and football coach are in the

unclassified service.



When the legislature wished to limit a statute within

Subchapter II to the classified service, it said so.



See, e.g., Sections 230.09 (classification), 230.15

(appointments, promotions, changes in classified

service) and 230.25, Stats. (certification,

appointments and registers).



When it wished to limit a statute to the

unclassified service, it also said so.



See, e.g., Section 230.148, Stats.



(unclassified service reappointments).



Since Section 230.13(2) is not limited by its language

or context, it should be applied to all positions

subject to Subchapter II.



The majority finds that Section 230.13(2), Stats.,

must be narrowly construed because it creates

an exception to the Public Records Law.



Section 230.13 was created as Section 16.095, Stats.,

by Section 22, Chapter 270, Laws of 1971. When that

history is placed in the context of the developed case

law, it is clear that Section 230.13 simply codified

and clarified a well-recognized common-law exception.



Newspapers, Inc. v. Breier,

 89 Wis.2d 417,

279 N.W.2d 179 (1979)



is a good place to begin a study of the previous public

records law because the case was decided under Section

19.21(2), Stats. (1973), which was in effect when

Section 16.095, Stats., was enacted.



That statute was interpreted by the supreme court as a

statement of the common law, leaving in place the

limitations on the inspection of public records

that existed at common law.



Breier, 89 Wis.2d at 426, 279 N.W.2d at 183.
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The court pointed out that under the common law, the

right to inspect public records was not absolute.



Id. at 429, 279 N.W.2d at 185.



The Breier court, and the Youmans court in an earlier

decision,



State ex rel. Youmans v. Owens,

 28 Wis.2d 672,

137 N.W.2d 470,

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



concluded that the legislative policy expressed in the

Open Meeting Law carried over to the inspection of

public records and documents.



Breier, 89 Wis.2d at 430, 279 N.W.2d at 185.



When Section 16.095, Stats. (1971), was created,

the Open Meeting Law permitted closed sessions of

governmental bodies for the purpose of considering the

employment of any public employee.



Section 66.77(3)(b), Stats. (1971).



Under Breier and Youmans, the legislative policy

expressed in this exception to the requirement of

open meetings carried over to the inspection of

public records and documents.



Therefore if any legislative intent can be inferred

from the state of the law when Section 16.095 was

created, the legislature appears to have intended to

further limit the right to inspect public employees'

personnel records.



Parenthetically, I note that when the legislature

created the modern Public Records Law, it continued

to use the Open Meeting Law exemptions as indicative

of public policy.



Section 19.35(1)(a), Stats.



Given the public policy that personnel matters may be

closed to the public, I cannot accept that when the

legislature created Section 16.095(2), Stats. (1971)

[now Section 230.13(2), Stats.], it intended to permit

appointing authorities to close the records of

applicants for positions in the classified service,

but required them to disclose the applicants

for positions in the unclassified service.
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The majority opinion does not address whether any part

of Section 230.13, Stats., other than Subsection (2)

applies to unclassified employees.





Admittedly, none of the other subsections

are directly involved in this appeal.



However, the subject matter of the other provisions

provides a clue to the legislative intent

as to Subsection (2).



For example, Subsection (3) lists dismissals,

demotions and other disciplinary actions.



Historically, such records have always

been subject to closure.



I cannot accept that the legislature intended to

change the law in this respect, without

a clear expression of that intent.



The alternative is to ascribe to the legislature an

intent that one subsection of Section 230.13 applies

only to the classified service while others apply

also to the unclassified service.



That result is wholly illogical.



I conclude that Sections 230.01(1) and (2), Stats.,

reveal a public policy supporting the closing

of personnel records.



Exposing personnel records to public scrutiny would

inhibit attracting and retaining competent

personnel in the public service.



In this case, we need not consider whether the Board of

Regents, the chancellor, or the athletic director

properly denied disclosure based on this public policy

because they had no discretion to exercise.



The decision to close the names of the applicants for

the positions of UW-Madison athletic director and

football coach was made by the department under

Section 230.13(2), Stats.



Department of Employment Relations Bulletin MRS-19

makes clear that the department intended its

instructions to state agencies and appointing

authorities to apply to all employees in

the state service.



The introductory paragraph states "This bulletin is

issued to interpret the Open Records Law and clarify

which documents in the Employe Personnel Record ("P"

file) of state civil service employes are open to the

public, and which may be closed to the public."
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The civil service includes the unclassified

service as well as the classified service.



The majority concludes that "a fair reading of the

bulletin" indicates that the list of records therein

includes only records of classified employees.



Majority op. at 941 n.3.  I disagree.



The majority's reading requires us to assume that

the department which is charged with administering

the state public service does not know the meaning

of "civil service."



I do not agree that ascribing that defect of knowledge

to the department is a "fair reading" of the bulletin.



The majority's construction of Section 230.13(2),

Stats., requires that we judicially amend the statute

to read:

          "Names of applicants for positions

          in the classified service other

          than those certified for

          employment."



We are not to add words to an unambiguous statute

unless an interpretation of a statute leads to a

ludicrous or plainly unintended result.



State ex rel. Girouard v. Jackson County Circuit Ct.,

149 Wis.2d 578, 584,

439 N.W.2d 833, 836 (Ct. App. 1989)



(Sundby, J., dissenting), rev'd,

155 Wis.2d 148,

454 N.W.2d 792 (1990).



The majority concludes that in any event,

the university



          "failed to exercise its

           discretion in the matter . . ."



Majority op. at 943 n.5.



The university officials had no discretion to exercise.



Acting under Section 230.13(2), Stats., the department

closed the personnel records containing the names of

applicants for positions in the public service,

including the positions of athletic director

and football coach.





The Journal's quarrel is with the secretary and

the administrator of the department, or,

more likely, with the legislature.







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RELATED CASE LAW

STATE EX REL BLUM v. BOARD OF EDUCATION,
209 Wis.2d 377 (Ct.App. 1997)
565 N.W.2d 140

MILWAUKEE JOURNAL v. UW BOARD OF REGENTS,
163 Wis.2d 933 (Ct.App. 1991)
472 N.W.2d 607