STATE v. SCHOOL DISTRICT OF

SEVASTOPOL,

146 Wis.2d 629 (Ct.App. 1988)

431 N.W.2d 734




630
631
632
633
634
635
636
MAIL
GJS
STATE of Wisconsin, ex rel.

Donald ZINNGRABE,

Plaintiff-Appellant,



v.



The SCHOOL DISTRICT OF SEVASTOPOL,

Defendant-Respondent,



Carl SCHOLZ, Defendant.








Court of Appeals No. 87-2376. Orally argued September 15, 1988. Ä Decided September 27, 1988.
TOP
630
631
632
633
634
635
636
MAIL
GJS
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.



MYSE, J.



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.
TOP
630
631
632
633
634
635
636
MAIL
GJS
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.
TOP
630
631
632
633
634
635
636
MAIL
GJS
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

               reasons therefor.



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.

                  (Emphasis supplied.)



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.
TOP
630
631
632
633
634
635
636
MAIL
GJS
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.
TOP
630
631
632
633
634
635
636
MAIL
GJS
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.



We disagree.



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.
TOP
630
631
632
633
634
635
636
MAIL
GJS
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.
TOP
630
631
632
633
634
635
636
MAIL
GJS