OSHKOSH NORTHWESTERN v. OSHKOSH LIBRARY BD.,

125 Wis.2d 480 (Ct.App. 1985)

373 N.W.2d 459




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OSHKOSH NORTHWESTERN COMPANY, Petitioner-Appellant, v. OSHKOSH LIBRARY BOARD, Respondent. _________________________________________________________________ Court of Appeals No. 84-1220. Argued May 28, 1985. Decided July 17, 1985.
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APPEAL from an order of the circuit court for Winnebago county: 

WILLIAM H. CARVER, Judge.  Reversed and cause remanded with

directions.



For the petitioner-appellant, there were briefs by

Brady C. Williamson and Linda M. Clifford of

La, Follette, Sinykin, Anderson & Munson, of Madison.



Oral argument by Brady C. Williamson.



For the respondent, there was a brief and oral argument

by John Pence, city attorney, of Oshkosh.



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



NETTESHEIM, J.



The only issue on appeal is whether the circuit court properly

refused to grant a petition for mandamus to compel disclosure of

records reflecting motions and roll call votes which occurred

during closed meetings of the Oshkosh Library Board.



Because, the library board failed to give sufficient

reasons for denying access to the requested records,

we are persuaded that the circuit court erred.



We therefore reverse and remand.



The Oshkosh Library Board (board) met in closed session

pursuant to Section 19.85(1)(c), Stats.,[fn1] seven times from

October 1981 to March 1982 to consider a "personnel matter."



The propriety of convening in closed session is not at issue.



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The Oshkosh Northwestern Company, which publishes the Oshkosh

Northwestern (newspaper), requested access to any motions and

roll call votes which occurred in the closed sessions.



Inspection was denied and in August 1983, the newspaper

filed a petition for mandamus to compel disclosure

of the motions and roll call votes.



The circuit court initially granted an alternative

writ of mandamus, but after briefing and a hearing

on December 22, 1983, the circuit court quashed the writ.



The newspaper appeals.



The general rule is that public records

are open to public inspection.



See Section 19.35, Stats.



The legislature has expressly declared the

policy behind 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 with a presumption that the

public has a right to inspect public records.



Id.;



Newspapers, Inc. v. Breier,

89 Wis.2d 417, 426,

279 N.W.2d 179, 183-84 (1979).



The denial of public access is contrary to the public interest

and is allowed only in an exceptional case.



Section 19.31;



Hathaway v. Joint School District No. 1,

116 Wis.2d 388, 396,

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



Furthermore, exceptions to the general rule of

disclosure must be narrowly construed.



Id. at 397,

342 N.W.2d at 687.
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The right of the public to inspect public records,

however, is not absolute.



One exception to the right of inspection is when the public

interest in nondisclosure outweighs the public's right of

inspection.



Id. at 396,

342 N.W.2d at 686;



State ex rel. Youmans v. Owens,

28 Wis.2d 672, 681,

137 N.W.2d 470, 474 (1965).



When faced with a demand for inspection, the custodian

of the records must engage in this balancing process.



Newspapers, Inc. at 427,

279 N.W.2d at 184.



If the custodian refuses to allow inspection, the custodian

must state specific policy reasons for the refusal and these

reasons then provide a basis for review by a court.



Id.; Youmans at 682,

137 N.W.2d at 475.



If specific, sufficient reasons are not given, a writ of

mandamus must be issued, compelling disclosure

of the requested public record.



Hathaway at 403-04,

342 N.W.2d at 690;



Beckon v. Emery,

36 Wis.2d 510, 518,

153 N.W.2d 501, 504 (1967).



The legislature has expressly provided that motions

and roll call votes are open to public inspection

to the extent prescribed by the public records law.



See Section 19.88(3), Stats.



Initially, the newspaper made oral requests to

inspect the motions and roll call votes.



The board denied inspection without giving any reason.



Upon the board's denial,

the newspaper initiated this mandamus action.



A person who is denied access to a public record may

pursue a mandamus action only if the person

made a written request for inspection.



See secs. 19.35(1)(h) and 19.37, Stats.



Here, no such written request was made until

after the mandamus action was initiated.



At that point, the city attorney was in possession

of the records the newspaper sought to inspect.



The city attorney, therefore, rather than the usual

custodian of the board's records, responded to

the newspaper's request for inspection.
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The statute contemplates a process by which the custodian of

the records either grants or denies a request for inspection.



Sec. 19.35(4)(a), Stats.



Where inspection is denied, it is the custodian, not the attorney

representing the governmental body after a mandamus action is

commenced, who must give specific and sufficient reasons for

denying inspection.



While the procedure under which this mandamus action arose did

not strictly comply with the statute, the parties stipulated to

the procedure in order to address the merits of the action.



Because of the unique procedural facts of this case, we

examine the sufficiency of the response given by the city

attorney rather than that initially given by the board.



In a written denial of the newspaper's request

for inspection, the city attorney responded that:



[T]he Library Board has denied access pursuant to Section

19.35(1)(a), Wis. Stats., in that the meetings were exempted

from being public pursuant to Section 19.85(1)(c), Wis. Stats.,

and that the reason for the exemption of the meeting carries

over to the exemption of the records.



At the hearing on December 22, 1983, the city attorney restated

the board's position "that the proper calling and holding of

the Library Board meetings . . . was the rationale that was

used to deny the access to the minutes of said meetings."



In this context, the city attorney argued that the need to

protect an individual's reputational and privacy interests

was an inherent policy of Section 19.85(1)(c), Stats.



The city attorney did not, however, cite the need to protect

a specific individual's reputational and privacy interests

as a reason for denying access to the requested motions

and roll call votes.



The circuit court found that the board asserted

sufficient reason for denying access.
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This case involves the application of Section 19.35, Stats.,

to an undisputed set of facts.



The application of a statute to a particular

set of facts presents a question of law.



Maxey v. Redevelopment Authority of Racine,

120 Wis.2d 13, 18,

353 N.W.2d 812, 815 (Ct. App. 1984).



As such, we owe no deference to the trial court's conclusions.



First National Leasing Corp. v. City of Madison,

81 Wis.2d 205, 208,

260 N.W.2d 251, 253 (1977).



Furthermore, this court is not bound by a trial court

finding based on undisputed evidentiary facts when

the finding is essentially a conclusion of law.



Village of Sister Bay v. Hockers,

106 Wis.2d 474, 479,

317 N.W.2d 505, 507 (Ct. App. 1982).



We reject the board's position that a meeting properly closed

under one of the exemptions listed in Section 19.85(1), Stats,

in and of itself provides sufficient reason to deny access

to records generated during a closed meeting.



We acknowledge that Section 19.35(1), Stats, states that the

exemptions under which a closed meeting may be held pursuant

to Section 19.85 are indicative of public policy.



The statute further states, however, that where the exemptions

in Section 19.85 are used as grounds for denying access

to a public record, the custodian must make



          "a specific demonstration that there is a

          need to restrict public access at the time

          that the request to inspect . . . is made."



Sec. 19.35(1)(a). The statute contemplates, therefore, more than

a mere recitation of the statute under which the meeting was

closed and an assertion that the reasons for closure still exist

and serve as a basis to deny public inspection.



The custodian must state specific public

policy reasons for the refusal.



Newspapers, Inc. at 427, 279 N.W.2d at 184.



These were not provided by the city attorney here.
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The newspaper requested access only to motions and roll call

votes and did not request access to the minutes or the substance

of the discussions which occurred in the closed meetings.



The city attorney failed to state with the requisite

specificity and sufficiency the public policies which

would be implicated under the particular facts of this

case if access to the motions and roll call vote was granted.



Section 19.85(1)(c), Stats., the exemption under which the board

held the closed meetings, may be indicative of several legitimate

public policies, e.g., the need to protect the reputational or

privacy interest of the employee under discussion or the need to

allow governmental bodies to protect themselves from potential

lawsuits resulting from open discussion of sensitive information.



However, it is not the trial court's nor this court's

role to hypothesize the reasons for denying access or

to consider reasons not asserted by the custodian.



Newspapers, Inc. at 427,

279 N.W.2d at 184.



Such duty is expressly reserved to the

custodian under the statute.



Given the insufficiency of the reasons asserted

for denying access, the writ of mandamus

compelling disclosure must issue.



See



Hathaway at 403-04,

342 N.W.2d at 690.



We reverse and remand with directions to issue a writ of mandamus

compelling the Oshkosh Library Board to allow inspection of the

motion and roll call vote at issue.



By the Court.



Order reversed and cause remanded with directions.



[fn1]     Section 19.85(1)(c), Stats., provides in pertinent

          part:



          19.85(1)  A closed session may be held

                    for any of the following purposes:

          . . . . .



          19.85(1)(c)    Considering employment,

                         promotion, compensation

                         or performance evaluation

                         data of any public

                         employe over which the

                         governmental body has

                         jurisdiction or exercises

                         responsibility.
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OSHKOSH NORTHWESTERN v. OSHKOSH LIBRARY BD.,
125 Wis.2d 480 (Ct.App. 1985)
373 N.W.2d 459