MILWAUKEE JOURNAL v. UW BOARD OF REGENTS,
163 Wis.2d 933 (Ct.App. 1991)
472 N.W.2d 607 CONTENTS
THE MILWAUKEE JOURNAL, and
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,
Court of Appeals No. 90-0205.
Submitted on briefs November 8, 1991.
Decided June 27, 1991.
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.
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
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.
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
"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.
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
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.
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
DER, through its secretary, administers the law.
Chapter 230, Stats., divides state employment into
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
As for the university, all faculty and academic staff
positions including the athletic director and
football coach are unclassified.
The classified service is defined in the
" 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.
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.
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
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]
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]
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]
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
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
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
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
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
Id. at 83, 452 N.W.2d at 372 (citations
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
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
"There is an absolute right to inspect a
public document in the absence of
specifically stated sufficient reasons to the
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 . . . ."
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."
No such balancing was undertaken here.
Chancellor Shalala, citing only Section
230.13(2), Stats., flatly refused to disclose
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
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
Id. at 392,
392 N.W.2d at 839-40,
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
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.
Section 230.13, Stats., provides:
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
(2) Names of applicants other than those certified for
(3) Dismissals, demotions and other disciplinary
(6) Pay survey data obtained from identifiable
(7) Names of nonpublic employers contributing pay
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
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.
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.
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
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.
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
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'
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.
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."
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
"Names of applicants for positions
in the classified service other
than those certified for
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,
"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.
RELATED CASE LAW
STATE EX REL
BLUM v. BOARD OF EDUCATION,
209 Wis.2d 377 (Ct.App. 1997)
565 N.W.2d 140
v. UW BOARD OF REGENTS,
163 Wis.2d 933 (Ct.App.
472 N.W.2d 607