Larry HATHAWAY, Petitioner-Appellant, v. JOINT SCHOOL DISTRICT No. 1, CITY OF GREEN BAY, et al.; Board of Education of Joint School District No. 1, City of Green Bay, et al.; and Timothy G. Quinn, Superintendent of Joint School District No. 1, City of Green Bay, et al., Respondents-Petitioners.
No. 81-2298
Supreme Court of Wisconsin
January 31, 1984
116 Wis. 2d 388 | 342 N.W.2d 682
On June 4, 1981, Hathaway requested access to a computer-generated list of the names and addresses of all the parents of school children in the Green Bay school district. Hathaway, as executive direсtor of the Green Bay Education Association (Association), requested the list so that the Association could contact the children‘s parents in regard to its position on matters being discussed in the collective bargaining agreement between it and the Joint School District of Green Bay. The Association is the certified collective bargaining representative for the professional teachers employed by the Joint School District of Green Bay (School District), one of the respondents.
The computer-generated list, requested by Hathaway, consists of the names and addresses of all parents who have one or more children in the Greеn Bay public school district, created by the School District for its use in mailing information to the parents of the school system‘s students. Through the means of a computer, the list of
The School District, through its attorneys, on July 15, 1981, denied Hathaway‘s request for the list, stating:
“[T]he District takes the position that the parent name labels to which you refer do not constitute public records as defined by Wisconsin law.”
Hathaway, on August 24, 1981, filed a petition for writ of mandamus asking the circuit court to compel the School District to provide access to the list of parents’ names and addresses. In the School District‘s return to petition for writ of mandamus, it reiterated its position that the list “is not a public record within the meaning of sec. 19.21 of the Wisconsin Statutes and is therefore not available ....”
A hearing on the petition for writ of mandamus was held on November 6, 1981, before Circuit Judge Robert J. Parins of Brown county. On that date, the circuit court noted that the School District‘s position was predicated upon a reading of the pupil record statute,
The basis upon which the court of appeals reversed the circuit court is that the plain language of
An analysis of the public records statute,
It is conceded by the litigants before this court that the list of names and addresses of parents of children in the Green Bay School District constitutes a public record within the purview of
“Custody and delivery of official property and records. (1) Each and every officer of the state, or of any county, town, city, village, school district, or other municipality оr district, is the legal custodian of and shall safely keep
and preserve all property and things received from his predecessor or other persons and required by law to be filed, deposited, or kept in his office, or which are in the lawful possession or control of himself or his deputies, or to the possession or control of which he or they may be lawfully entitled, as such officers.”
This statute, which governs the examination or inspection of public records, was created by ch. 178, Laws of 1917, and was formerly numbered 18.01. Prior to that time statutes authorized inspection in certain circumstances. Otherwise, the public‘s right to inspection of public records was governed by the common law. International Union v. Gooding, 251 Wis. 362, 371, 29 N.W.2d 730 (1947); State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470, 139 N.W.2d 241 (1965); Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979).
In Gooding, supra, this court deemed that
“(1) Such books, papers, records, etc., as are required by law to be filed, deposited, or kept in his office; (2) books, papers, etc., in his possession as such officer; (3) books, papers, etc., to the possession of which he is entitled as such officer.” Id. at 369.
The term, “public record,” included not only those documents specifically required to be filed by the custodian of records, but all written papers made by an officer within his authority. Id. at 371; Youmans, supra. Thus,
The general rule is that any person may inspect a public record. The fact that the list is a public record within the purview of
“(2) Except as expressly provided otherwise, any person may with proper care, during office hours and subject to such orders or regulations as the custodian thereof prescribes, examinе or copy any of the property or things mentioned in sub. (1). Any person may, at his or her own expense and under such reasonable regulations as the custodian prescribes, copy or duplicate any materials, including but not limited to blueprints, slides, photographs and drawings. Duplication of university expansion materials may be performed away from the office of the custodian if necessary. Computer programs, as defined in s. 16.97 (4) (c), are not subject to examination under this subsection, but the data stored in the
memory of a computer is subject to the right of examination and copying.”2
On its face, because the list is a public record, it is subject to inspection by Hathaway unless expressly provided otherwise. However, this court has not read this subsection literally. Newspapers, Inc. v. Breier, 89 Wis. 2d at 426. This section has been interpreted as stating that one manner in which the public‘s right to inspect public documents may be limited is by a statutory provision which embodies an exception to
In Gooding, supra, we interpreted the section as a pronouncement of the common law, subject to the limitations on the inspection of records which existed at common law. We relied on the revisor‘s notes to the subsection which state that this “is believed to give expression to the general implied right of the public to consult public records.” Laws of 1917, ch. 178, Bill No. 133, S. Thus, we declared:
“Whilе it is possible to contend that the words are so clear as not to be subject to construction we are of the view that the common-law right of the public to examine records and papers in the hands of an officer has not been extended.
“We shall not go into the scope of the common-law right exhaustively or attempt to document our observations upon it. It is enough to say that there are numerous limitations under the common law upon the right of the public to examine papers that are in the hands of an officer as such officer.” 251 Wis. at 372.
Thus, the public‘s right to inspect public records is not only subject to statutory provisions which expressly
In Youmans, supra, we were called upon to determine whether a writ of mandamus should issue to compel Owens, the mayor of the City of Waukesha, to permit Youmans to examine certain papers in the custody of the mayor. We adopted a statement of the common-law right of inspection of public records made by the Vermont court which stated:
“‘We think it may be safely said that at common law, when not detrimental to the public interest, the right to inspect public records and public documents exists with all persons who have a sufficient interest in the subject-matter thereof to answer the requirеments of the law governing that question.‘” 28 Wis. 2d at 681, citing Clement v. Graham, 78 Vt. 290, 315, 63 A. 146 (1906).
We concluded that:
“[T]here may be situations where the harm done to the public interest may outweigh the right of a member of the public to have access to particular public records or documents.” Youmans, 28 Wis. 2d at 681.
After we outlined the procedure which must be followed to arrive at such a determination, we said that it is incumbent upon the custodian of the public record who refused the demand of inspection to “state specifically the reasons for this refusal.” Id. at 682. We did recognize in Youmans that public policy favors the right of inspection and it is only in the exceptional case that inspection should be denied. Thus, the third exception to the public‘s right to inspect public documents is where the public interest in keeping a public record confidential outweighs the public‘s right to have access to the documents.
As evidenced by the foregoing discussion, the public‘s right to inspect documents is not absolute. Gooding, supra;
Having set forth the exceptions to the public‘s right to inspect documents, we now analyze the School District‘s position that the list, a public record, should not be disclosed to Hathaway. The School District maintains that there is an express statutory provision which limits
“118.125 Pupil records. (1) DEFINITIONS. In this section:
“(a) ‘Pupil records’ means all records relating to individual pupils maintained by an elementary or high school but does not include notes or records maintained for personal use by a teacher or other person who is required by the department under s. 115.28 (7) to hold a certificate, license or permit if such records and notes are not available to others nor does it include records necessary for, and available only to persons involved in, the psychological treatment of a pupil.
“(b) ‘Behavioral records’ means those pupil records which include psychological tests, personality evaluations, records of conversations, any written statement relating specifically to an individual pupil‘s behavior, tests relating specifically to achievement or measurement of ability, the pupil‘s physical health records and any other pupil records which are not progress records.
“(c) ‘Progress records’ means those pupil records which include the pupil‘s grades, a statement of the courses the pupil has taken, the pupil‘s attendance record and records of the pupil‘s school extracurricular activities.
“(2) CONFIDENTIALITY. All pupil records maintained by a public school shall be confidential . . . .”3
The School District argues that, because pupil records are defined as “all records relating to individual pupils,”
Thus, the issue we address is whether the pupil record statute,
Initially, we note that not all records concerning pupils are to be confidential. Only those records that fall within the express language which defines “pupil records” are afforded confidentiality. The language of
Our next step is to determine whether the list of parents’ names and addresses, generated by a computer, and used by the School District for the mailing of information to parents of its students regarding its concerns, is a pupil record within the contemplation of
Clearly, the public record in question, the list, does not come within the purview of behavioral records,
We agree that
The School District also takes exception to the court of appeals’ application of the doctrine of expressio unius est exclusio alterius, because it contends the definition of “pupil records” does not in any manner list or enumerate items in its purview. This doctrine, of express mention and implied exclusion, was recognized by this court in State ex rel. West Allis v. Milwaukee L., H. & T. Co., 166 Wis. 178, 182, 164 N.W. 837 (1917), in which we stated:
“’ It is based upon the rules of logic and the natural workings of the human mind. But it is not to be taken as establishing a Procrustean stаndard to which all statutory language must be made to conform. On the contrary, it is useful only as a guide in determining the probable intention of the legislature, and if it should be clearly apparent, in any particular case, that the legislature did not in fact intend that its express mention of one thing should operate as an exclusion of all others, then the maxim must give way.‘” Citing Black on the Interpretation of Laws (2d ed.) 219; see also, Columbia Hospital Asso. v. Milwaukee, 35 Wis. 2d 660, 669, 151 N.W.2d 750 (1967); Gottlieb v. Milwaukee, 90 Wis. 2d 86, 95, 279 N.W.2d 479 (1979).
In Columbia Hospital, supra, we stated that:
“Factually, there should be some evidence the legislature intended its application lest it prevail as a rule of construction despite the reason for and the spirit of the enactmеnt.” 35 Wis. 2d at 669.
We need not make the determination of whether the legislature in
Neither party has advised the court, nor are we aware, of any limitation which existed under common law which would act now to bar Hathaway‘s right to inspect the public record he requested from the School District. Thus, under the common law, Hathaway has the right to inspect the list of parents’ names and addresses.
Finally, as previously noted, this court has recognized that there may exist a situation where the harm done to the public interest by permitting inspection may outweigh the public‘s right to have access to the public record. Youmans, supra; Beckon, supra; Newspapers, Inc. v. Breier, supra. In order to implement the presumption that the denial of inspection of a public record is contrary to the public policy and the public interest, we have set out legal standards and procedures to which a custodian of public documents must comply when a member of the public requests public documents.
When a request for inspection of the public document is made by a member of the public, the custodian of the document must “weigh the competing interests involved and determine whether permitting inspection would result in harm tо the public interest which outweighs the
Hathaway requested, in his letter dated June 4, 1981, that he “be permitted to examine and copy the names and addrеsses of parents of children in the District. The District maintains such parental names on address label.” On July 15, 1981, the School District through its attorney stated that “the District takes the position that the parent names labels to which you refer do not constitute public records as defined by Wisconsin law. Therefore, your request for examination and copying of such address labels is denied.” Again, in its return to petition for writ of mandamus, the School District stated that the list was not a public record and was, therefore, not available to Hathaway. The custodian of the list of parents’ names and addresses, the School District, failed to state with specificity its reasons for withholding the publiс record. This makes it impossible for this court to make the contemplated review to determine whether the public policy in favor of disclosure is outweighed by even more important public-policy considerations. Obviously, plausible and perhaps valid reasons for withhold
“It is not the trial court‘s or this court‘s role to hypothesize reasons or to consider reasons for not allowing inspection which were not asserted by the custodian. If the custodian gives no reasons or gives insufficient reasons for withholding a public record, a writ of mandamus compelling the production of the records must issue. Beckon, supra at 518, states, ‘[t]here is an absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary.’ (Emphasis supplied.)” Newspapers, Inc. v. Breier, 89 Wis. 2d at 427.
We thus conclude that, where a request for a public record is made and no statutory exception exists, no limitations under common law exist, and no specifically stated sufficient reasons to the contrary are presented by the custodian, a writ of mandamus must issue compelling production of the requested public record.
By the Court.—The decision of the court of appeals is affirmed, and the cause is remanded to the circuit court for the issuance of the writ of mandamus compelling the respondent, School District, to produce for inspection purposes the list of parents’ names maintained by it on address labels as requested by the petitioner, Hathaway.
LOUIS J. CECI, J. (dissenting). I respectfully disagree with the holding of the majority. Although I agree with the majority‘s statement that the general rule is that any party may inspect a public record, I disagree with the majority‘s conclusion because I find
In the seminal case concerning third-party inspection which was denied by a custodian of public records, State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470, 139 N.W.2d 241 (1965), this court stated that the third-party‘s right to inspect public documents at common law is not absolute. Although the Youmans court recognized the strong public policy favoring the right of inspection of public records and noted that denial could occur only in exceptional cases, the opinion stated that limitations existed at common law and were not extended by the public records statute. Id. at 680-81. See also, International Union v. Gooding, 251 Wis. 362, 29 N.W.2d 730 (1947).
In Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979), this court again addressed the issue of the third-party‘s right to inspect public records. The Breier court stated the following:
“Nevertheless, we have concluded, where common-law limitations on the right to examine records and papers have not been limited by express court decision or by statute, that presumptively public records and documents must be open for inspection.” Id. at 426. (Emphasis added.)
The language of
The majority recognizes that the public‘s right to examine records may be limited by statute, but nevertheless states that not all records concerning pupils are to be confidential. Rather, the majority opinion declares
However, I find this conclusion to be contrary to the plain language of the statute.
I also believe that this interpretation is consistent with the development of the law concerning pupil records. A Wisconsin Law Review which analyzed both
“In the 1970‘s, various studies of school record keeping revealed administrative practices which threatened the privacy interests of students and their parents. . . . Further, the studies revealed that little attention was given to the development of consistent policies by school administrators to balance the family‘s privacy interests against the schools’ needs for information and third-party requests for that information.” Comment, Access
to Student Records in Wisconsin: A Comparative Analysis of the Family Educational Rights and Privacy Act of 1974 and Wisconsin Statute Section 118.125, 1976 Wis. L. Rev. 975-76.
As a result of these studies, both the federal and Wisconsin statutes were passed in order to protect the privacy interests of the students and their families. Id. I believe that it is virtually impossible to separate a list of parents’ names from the protection intended by the statute, that of the student‘s and family‘s privacy interests.
Although the requested list appears to be innocuous enough on its face, I believe that providing access to information tabulated from рupil records undercuts the legislative purpose of the statute, which is to protect the privacy interests of the student and the family. What the majority fails to take into account is that by removing the student‘s name from information taken from the pupil records, lists assembled by the school for any reason would no longer be protected by the statute. Thus, a list of families of students with special learning disabilities could be examined and copied by third parties. There is the danger that such “stigmatizing” information could be somehow correlated with the individual pupil possessing such a disability, or with the pupil‘s family, thus circumventing the privacy rights which the legislature sought to protect. As the Commеnt notes:
“Students and their parents are interested in ensuring that the school does not intrude upon their privacy by abusing collection data procedures. This interest is protected . . . by the implementation of safeguards—such as the provision of parental access to student files and the exertion of control over the release of those files to third parties—designed to protect the student from the collection and dissemination of misleading, stigmatizing information.” Comment, Access to Student Records in Wisconsin: A Comparative Analysis of the Fam-
ily Educational Rights and Privacy Act of 1974 and Wisconsin Statute Section 118.125, 1976 Wis. L. Rev. 975, 979.
The language of
Although the majority attempts to construe “behavioral records” and “progress records,” as defined by
I believe that it is error for the court to cut away at the protections intended by
Notes
“(d) ‘Directory data’ means those pupil records which include the pupil‘s name, address, telephone listing, date and place of birth, major field of study, participatiоn in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, photographs, degrees and awards received and the name of the school most recently previously attended by the pupil.”