THE MILWAUKEE JOURNAL, and Dennis Chaptman, Plaintiffs-Respondents, v. 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, Defendants-Appellants.
No. 90-0205
Court of Appeals of Wisconsin
Submitted on briefs November 8, 1991.—Decided June 27, 1991.
472 N.W.2d 607
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.
OPINION
EICH, C.J. 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 Wisconsin-Madison.
The issue is whether
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
The trial court ruled that
The university appeals, repeating the arguments made below. Like the trial court, we see
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 depеndent 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 оpen 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. Sec. 19.31, Stats.
In light of that policy, “[t]he general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless therе exists a limitation under the common law, or unless there is an overriding public interest in keeping the public record confidential.” 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
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 (emphasis added). We see no such “clear,” “explicit” or “unequivocal” exception in
The classified service is defined in the statute as: “all positions not included in the unclassified service.”
Appointments to positions in the classified service are made pursuant to a “merit” selection plan based upon competitive examinations.
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
We believe the statutory language сan 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
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
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 confidеntial, 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
We decline the university‘s invitation to construe
The language of
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 рolicy of the state by creating an exception to the open records law through the interpretation of an ambiguous statute.4
By the Court.—Judgment affirmed.
Closed records. [T]he secretary аnd the administrator may keep records of the following personnel matters closed to the public:
(1) Examination scores and ranks and other evaluations of applicants.
(2) Names of applicants other than those certified for employment.
(3) Dismissals, demotions and other disciplinary actions.
(6) Pay survey data obtained from identifiable nonpublic employers.
(7) Names of nonpublic employers contributing pay survey data.
Pursuant to this section, the department issued bulletins closing applicants’ personnel records which contain mаterials 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 football coach.
The majority concludes that
The majority creates an ambiguity in
The majority finds that
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
The Breier court, and the Youmans court in an earlier decision, 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
Given the public policy that personnel matters may be closed to the public, I cannot accept that when the legislature created
I conclude that
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
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
The majority concludes that in any event, the university “failed to exercise its discretion in the matter . . . .” Majority op. at 943 n.5. The university officials had no discretion to exercise. Acting under
Notes
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
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 time.” 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 courts.” Id. at 83, 452 N.W.2d at 372 (citations omitted). Where—as is the case here—“there is no evidence of any special expertise or еxperience, the weight to be afforded an agency interpretation is no weight at all.” Id. at 84, 452 N.W.2d at 372.
We also agree with the trial court that even if
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 in openness. “There is an absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary. Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179, 184 (1979) (emphasis in original). 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 . . . .” Id. It is a case-by-
No such balancing was undertaken here. Chancellor Shalala, citing only
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) (citation omitted). It must be “more than an unexplained choice between alternatives.” 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 discretion.” Id. at 392, 392 N.W.2d at 839-40, quoting 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 interests. 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.