STATE v. SCHOOL DISTRICT OF
146 Wis.2d 629 (Ct.App. 1988)
431 N.W.2d 734
STATE of Wisconsin, ex rel.
The SCHOOL DISTRICT OF SEVASTOPOL,
Carl SCHOLZ, Defendant.
Court of Appeals No. 87-2376.
Orally argued September 15, 1988. Ä
Decided September 27, 1988.
APPEAL from an order of the circuit court for Door county:
S. DEAN PIES, Judge. Affirmed.
For plaintiff-appellant there were briefs and oral argument
by Colleen A. Cote of Kirkegaard & Cote, Sturgeon Bay.
For defendant-respondent there was a brief by
Sara E. Ramaker and Jerome E. Smyth and
oral argument by Jerome E. Smyth of
Liebmann, Conway, Olejniczak & Jerry, S.C., Green Bay.
Before Cane, P.J., LaRocque and Myse, JJ.
Donald Zinngrabe appeals an order denying his request
for a writ of mandamus, punitive damages, and
other costs under the open records law,
Sections 19.35 and 19.37, Stats.
Zinngrabe contends that the school board of the
Sevastopol school district violated the open records law,
entitling him to punitive damages.
Because we conclude that the school board's alleged
violations cannot be reached through an open records
claim, we affirm the trial court's order.
Zinngrabe made a written request to Carl Scholz, the
superintendent of the Sevastopol school district,
for the minutes of a series of Sevastopol
school board meetings.
Scholz promptly complied with this request.
Zinngrabe then specifically requested minutes
of closed meetings held on January 16,
February 20, April 17, and May 15, 1986.
The request was renewed in writing with the additional
request for minutes of a meeting dated August 11, 1986.
It is undisputed that no meeting occurred on August 11.
Scholz claims that he advised Zinngrabe orally that no
minutes of these closed sessions were recorded because
no formal action was taken at any of these meetings.
Scholz explained that the minutes of closed sessions
were only taken when motions were made or when
other action was taken by the board.
Apparently the minutes and agenda of the open session
disclose whether a closed meeting was held,
the length of the meeting, and the subject
matter for the closed meeting.
However, he admits that he never informed Zinngrabe in
writing that no records existed for these four meetings.
Zinngrabe first asserts that Section 19.35(4) requires
a written statement by the board explaining to him
that his request is being denied because no minutes
for the meetings in question were ever recorded.
We disagree, and conclude that because no records
existed for these meetings, there is no violation
under the provisions of Section 19.37.
Section 19.35(4) provides:
Time for compliance and procedures.
19.35(4)(a) Each authority, upon request for any record,
shall, as soon as practicable and without
delay, either fill the request or notify
the requester of the authority's
determination to deny the request
in whole or in part and the
19.35(4)(b) . . . If an authority denies a written
request in whole or in part, the requester
shall receive from the authority a written
statement of the reasons for denying
the written request.
Every written denial of a request by an
authority shall inform the requester that
if the request for the record was made in
writing, then the determination is subject
to review by mandamus under Section 19.37(1)
or upon application to the attorney general
or a district attorney.
Section 19.32(2) defines "record" as "any material on which
written, drawn, printed, spoken, visual or
electromagnetic information is recorded or
preserved, regardless of physical form or
characteristics, which has been created or
is being kept by an authority.
Zinngrabe's assertion assumes two facts,
neither of which is accurate.
First, it assumes that the failure to furnish nonexistent
records constitutes a denial of the request.
His position also assumes that he is entitled to punitive
damages under Section 19.37 because the board failed
to advise him in writing that the requested
records do not exist.
The provisions for mandamus or costs, fees, and damages
outlined in Section 19.37 are triggered only once
"authority withholds a record or
a part of a record or delays
granting access to a record or
part of a record after a written
request for disclosure is made . . ."
Section 19.37, Stats.
The open records law is designed to make existing records
and documents available to the public unless withholding
such documents is specifically authorized by statute.
See Hathaway v. Joint Sch. Dist. No. 1,
116 Wis.2d 388, 394,
342 N.W.2d 682, 685 (1984);
Section 19.31, Stats.
The board furnished all of the existing minutes for
each of the meetings specified in Zinngrabe's request.
When Zinngrabe indicated he was not satisfied with
the materials furnished, Scholz compiled all of
the official board proceedings, including a
list of proceedings and reports comprising
the official records of the school board,
and turned them over to Zinngrabe.
Contrary to Zinngrabe's contention, his request
for records was fully and completely met by
the school board; the school board turned
over all the records in its possession
that Zinngrabe requested.
Therefore, the school board fully and
completely complied with Section 19.35.
An authority cannot deny or withhold
access to that which does not exist.
In addition, it would be unreasonable to burden
the authority with not only the duty to furnish
the records requested but to inventory the records
to determine which records, if any, do not exist.
For these reasons we conclude that punitive damages
are not authorized by statute for a failure to
advise a requester in writing that certain
records do not exist.
Zinngrabe appears to argue that punitive damages
under Section 19.37 should be available where
the public entity induces the requester to
believe that particular records exist
by failing to respond to a request.
This would lead the requester to incur expenses
in filing suit to compel disclosure, only
to discover that the records never
existed in the first place.
However, we need not address this issue because
Zinngrabe knew that no records existed for
these four closed sessions.
Scholz told him orally that these
records did not exist.
Zinngrabe received all the existing records he requested,
and these records indicated that closed sessions
were held on the dates in question.
Given these facts, this case does not present a situation
where the requester was induced to believe records
existed when in fact they did not.
Zinngrabe next argues that Section 120.11(1)[fn1] and
120.17(3), Stats.,[fn2] required the board to maintain
records of its closed meetings, and that the failure
to do so allows him to enforce this alleged
requirement under the open records law.
Zinngrabe essentially argues that the board is
attempting to defeat the provisions of the
open records law by not keeping records
that it is directed by statute to maintain.
Zinngrabe's claim for relief, however, assumes that
the board's alleged failure to keep minutes can
be attacked under the open records law.
We disagree with this premise and, accordingly, need not
address the issue of whether and to what extent minutes
must be maintained by the school board clerk.
The open records law does not dictate which documents
are to be created or direct the government
to maintain specific records.
The duty to maintain such records and the enforcement
of such duty must be found elsewhere in the law.
Zinngrabe misconceives the purpose and provisions of the
open records law by attempting to use the open records
law to reach the alleged violation of official duties.
Because we conclude that the open records law cannot be
used to compel the creation of records, we affirm the
trial court's dismissal of Zinngrabe's request
for mandamus and punitive damages.
Likewise, we need not address the assertions that Scholz
acted arbitrarily or capriciously, either in determining
that such records should not be maintained or in failing
to promptly notify Zinngrabe that no records existed for
the four meetings in question because these assertions
are not relevant in resolving the claim under the
open records law.
By the Court. Ä Order affirmed.
[fn1] Section 120.11(1) provides in part:
The school district clerk shall record the minutes
of school board meetings and, in his or her
absence, the school board may select
another school board member to act
as the clerk of the meeting.
[fn2] Section 120.17(3) provides as follows:
The school district clerk of a common
or union high school district shall:
120.17(3) Enter in the record book provided by the school
board the minutes of its meetings, orders,
resolutions and other proceedings.