*1 Blum, Stаte of Wisconsin ex rel. Elizabeth Petitioner-A ppellant,† v. Education, Board of School District of Johnson Creek, Respondent-Respondent. Appeals
Court of 9, 1996. No. 96-0758. Submitted on December —Decided briefs 6, 1997. March (Also 140.) reported in 565 N.W.2d to review denied. † Petition *2 was For the the cause submit- petitioner-appellant E. Brant Watertown. of Kirby ted on the briefs of the cause was sub- For the respondent-respondent Steen and Shannon A. Larry of mitted on brief Neshek, Leibsle, & Allen of Worth S.C. Godfrey, Elkhorn. P.J., Roggensack Deininger,
Before Dykman, JJ.
DEININGER, J. Elizabeth Blum appeals mandamus her for a writ of denying petition order compel provide the Johnson Creek Board School her Open access to certаin under records Records requested Law.1 Because we conclude that the "pupil § are confidential records" under 118.125, they exempt from access and disclo- 19.36(1), Accordingly, sure under we affirm the STATS. petition. denial of Blum's
BACKGROUND through requested Blum, counsel, the Board to provide per-class report grades her "a of all interim February which existed as of 15, 1995 and which were averaged incorporated later or otherwise into the final grade" eighth for the semester for herself and one request "other student." This was later clarified as fol- *3 lows:
It simply impossible believe teachers had tests, any grades homework, not entered for class participation, and so on in their class books or other systems. classroom record . . . Those teacher-record grades are what I expect to receive. Whether such grades were filed with the office or otherwise reported is immaterial.
The Board had awarded the 1995 Academic Excellence Higher Scholarship Education to the "other student" grades sought.2 Although whose interim were not iden- through 19.39, Sections 19.31 Stats. 39.41, 2 See Stats. Apparently, the "other student" § stood first in class rank after seven semesters received the schol arship. final, rank, Blum eight stood first in the semester class while the "other Although student" was then second. the record may request prelude litigation have been a over the scholar selection, ship this purely action was for mandamus under 19.37D, Thus, whether Blum is entitled to obtain the STATS. requests subsequent by or in name in the record tilled identity question that the documents, there is no court Blum and could be was known to of the "other student" by "anyone." discovered responded by president, to Blum's Board,
The its noting already provided request by certain that it had by deny- you requested" transcripts "materials and grades: ing specific request interim the records three your request for teacher per As quarter, the final I will not burden the weeks into tabulating in such material. administrative staff determining partial grades These are immaterial of the Academic Excellence Scholar- recipient Also, they vеry ship per policy. as Board the decision in incomplete impact and would not on naming per procedure. a Valedictorian as District response, petition. In Blum then filed her mandamus attorney through legal counsel, sent Blum's Board, setting "specific nine-page forth in detail its letter requested denying you disclosure to of reasons for grades." per-class records of interim argument hearing court, circuit after from memorandum decision conclud- counsel, issued a both requested public ing that the items were not "authority," they kept and fur- because were they they records, were ther, even if were confidentiality provi- exempted disclosure from § 118.125, sions Stats. *4 804, Stats., disсovery Chapter through procedures, civil
is not before us.
ANALYSIS a. Standard of Review Generally, grant a circuit court's decision to or deny petition upheld a for writ of mandamus will be erroneously unless the court exercised its discretion. Callaway, ex See State rel. Lewandowski v. (1984).
165, 171, 346 N.W.2d 459-60 Where, as application Open here, however, the issue is the of the undisputed Records Law facts, we review de novo question presented. of law See Wisconsin State University Journal v. of Wisconsin-Platteville, Wis. 1990). 31, 36, Kept by "Authority" b. "Records" An " 19.32(2), any '[r]ecord' Under a means STATS., material on which written . . . information is recorded preserved, regardless physical or form or character- being kept by istics, which has been created or is an authority." "authority" An is defined as:
[A]ny following having custody of the of a a record: office, official, board, agency, state or local elected commission, committee, council, department or public body corporate and politic created consti- tution, law, ordinance, order; rule or governmental quasi-governmental corporation or formally any ... or a constituted subunit of of the foregoing. 19.32(1).
Section deny The circuit court based its decision to the writ "[t]he on its conclusion interim marks recorded kept by authority teacher under the stat- *5 however, not clear conclusion, this ute." The basis for evidentiary proceedings were conducted no because any file court, nor did the Board affidavits the circuit by grades" detailing "interim are when, how, and whom created, maintained and used. "authority," argues as the that since an such
Blum
employees,
through
Board, must act
its officers
"[djocuments
the
which otherwise fit
definition
authority
they
'kept' by
whenever
are
'records' are
employee
possession
or
who falls
in the
of an officer
"
'authority.'
agree.
supervision
A
the
of the
We
under
public body
may
access mandate of
avoid
[a]
"by delegating
Chapter
cre
19, both
record's
custody
agent." Journal/Sentinel,
Inc.
ation and
to an
443, 452-53,
Bd., 186 Wis. 2d
521
v. Shorewood Sch.
1994).
165, 169-70
N.W.2d
interim
The Board asserts in its brief that
grades
"given
superintendent
are not
are not
kept
Board,"
the School
and further that the Board
not,
not,
does
nor in the future intends to create or
"did
keep material and documentation defined as interim
grades
are created
individual
marks and
which
made similar assertions
teachers." The Board's counsel
during argument
These
in the circuit court.
assertions
support
because,
noted,
in the record
as
have no
testimony
presented
Moreover,
affidavits.
Board
no
or
negate
the
require
do not
the Board's entitlement to
assertions
grades
interim
to the Board.
teachers
submit
grades
posses
physically in the
Even if the interim
are
they
members,
sion of teachers and not Board
possession or control" of
nonetheless within the "lawful
Bay
Hathaway
Dist., 116
v. Green
Sch.
Board. See
(1984);
393-94,
682,
State
Wis. 2d
N.W.2d
672, 678-80,
Owens,
ex rel. Youmans v.
(1965).
472-73
19.37, STATS., are to be construed
19.32 to
Sections
"complete public
presumption
access"
in favor of
a with
[govern-
regarding
acts of
"the official
information
*6
represent
employes
ment]
them."
who
and
officers
added.)
(Emphasis
19.31,
see
Section
Stats.;
Hathaway,
684.
392,
at 687. Records" Confidentiality "Pupil
c. "[a]ny 19.36(1), provides that Section STATS., exempted specifically disclosure from record which is exempted by to be law or authorized state or federal exempt by from disclosure law is disclosure state from 19.35(1)." argues that the interim The Board under s. grades interim did that circuit court concluded pre . . . "drafts, notes, computations preliminary qualify as use," from the an exclusion originator's рersonal pared for the 19.32(2), STATS., they are because "record" under § definition of The Board does not use." "professional created for a teacher's nor applies, exclusion "personal notes" appeal that the argue on argument. We such an support in the record is there evidence this issue. do not address therefore grades of the "other student" are pupil 118.125(1)(c) (d) from exempted disclosure § (2), STATS.4 The circuit court concluded that "[disclosure of another student's marks to [Blum] is prohibited by 118," Chapter and we agree.5
Blum's
to remove
attempt
the information
she
requests from the
mandate
confidentiality
118.125,
of §
is strained at best. She asserts that since the
"othеr
student"
is not named in her
request,
interim grades
do not
requested
"relate to an individ
ual pupil," and thus
they
not "pupil records" under
118.125(1)(d). Her
§
concession
anyone
who knew
the scholarship recipient's
identity "could identify the
'other student,'"
itself
defeats any plausibility her
argument might have. Moreover,
nothing
118.125
suggests
that "pupil records" are exempted from the
*7
Section 118.125(1)(d),
"pupil
defines
records" as
"all records relating to
pupils
individual
by
maintained
a
118.125(1)(c)
school";
"progress
§
states that
"pupil
records" are
118.125(2)
records which include
pupil's grades";
and §
mandates that
pupil
"[a]U
by public
records maintained
school
shall be confidential."
118.125(2)(a), STATS.,
Section
requires
pupil,
that a
or the
pаrent
guardian
or
pupil,
of a minor
must be shown a copy of the
pupil's
"progress
own
records."
request
Blum's
was for both her
own and the "other
grades.
student's" interim
She does not
argue
appeal,
on this
court,
nor did she in the circuit
that the
writ
granted
part,
should be
in
compelling
access
to her
own
grades. Rather,
interim
argument
Blum's
in both her ini
tial and reply
why
briefs focuses on
the "other student's" interim
grades should not be deemed a record "relating to individual
118.125(1)(d).
pupils" under
party
§
Neither
has addressed
whether the
improperly
Board
denied Blum access to her own
grades.
interim
We therefore decline to consider the issue. See
County
Waushara
Graf,
442, 451, 480
v.
16,
(1992).
denied,
cert.
Finally, the interim noted it should be if grades maintained "notes or records to be were shown 118.125(1)(d), by § personal teacher," use for STATS., pupil confidenti records them from exclude would ality trial court But, as the of the statute. mandate grades qualified for this confiden interim noted, if the they likely tiality excluded still be exclusion, would (" 19.32(2), § 'Record' disclosure from STATS. materials . . and like drafts, notes . does not include use."). pre originator's personal prepared As we for the viously explained, is devoid of the record in this case grades qualify for either stat that the interim evidence grades presumptively utory are Thus, the exclusion. purposes Chapter STATS., and a for оf a "record" both purposes "pupil § 118.125, STATS. of record" for requested interim that the conclude We therefore exempted pupil grades from disclosure statutory excep- 19.36(1), the "clear under STATS., § 118.125, forth in tion" set STATS. Denial Reasons Specificity
d. specify failed to the Board claims that since Blum cognizable grounds any it denied access when requested, information must issue a writ of mandamus following justifiable. cites the She if the denial even Newspapers, language Breier, 89 Wis. 2d v. Inc. from (1979), support of her *8 179, 184 417, 427, argument: insuffi- gives no reasons or gives
If the custodian record, a writ withholding public reasons for cient of the production compelling of mandamus 385 records must issue. Emery, [v. Beckon 510, 518, 501, (1967),] N.W.2d states, "[T]here is an right inspect absolute doc ument in the specifically absence of stated sufficient reasons to the contrary."
(Emphasis original.)
The Board's denial
letter
referred
complying
request
administrative burden in
with the
immateriality
incompleteness
and to the
of the
agree
records. We
with Blum that the letter failed to
specify
public policy
a sufficient
consideration that
outweigh
public's
would
interest
in access to the
agree
information. We also
with Blum that the Board's
post-petition response by legal counsel does not neces-
sarily
original
cure the insufficiencies of its
denial. See
Library
Oshkosh Northwestern Co. v. Oshkosh
Bd., 125
1985).
Wis. 2d
480, 484,
In Inc. v. Baldarotta, 162 Wis. 156-60, 643-45 (1991), supreme extensively court reviewed the his- tory and rationale of the Beckon / Breier rule. The court "specificity" developed concluded that the rule for "two primary reasons":
First, requirement provides a means specificity the arbitrarily denying restraining from of custodians weighing without whether public access to inspection the interest from out- public the harm to Second, in weighs public inspection. the interest the necessary provide to specific policy reasons grounds notice of the with sufficient requester challenge a to the prepare to enable him to denial a in the withholding provide to basis for review specificity requirement a The event of court action. therefore, in nature. at this is, procedural The focus in not on the custodian was correct stage is whether it the denying inspection request; the is on whether obligation fulfilled to public has his custodian response to meaningful reviewable provide request. the 160-61, 469 at 645.
Id. at validity cited for the rule has The rationale upon grounded for a denial of access is when the basis public policy con- When a custodian considerations. outweighed public's the interest access is cludes that competing public tell interest, he or she must some (and ultimately might requester any which court denial) If, however, that interest is. review the what exempted by specifically requested is the information grades Blum disclosure, from as are interim statute weigh requested, for a there is no need custodian legislature already competing has interests. done so. giving public-policy-basеd rise to
Unlike facts may access, indeed unknown which be denial exempting requester, certain of a statute the existence uniquely not from disclosure is kinds of information knowledge. By token, a the same the custodian's within reviewing cer- novo determination whether court's de statutorily exempted from information is tain by anything might disclosure aided a custodian say in a it letter, denial nor is deterred the custo- dian's silence.6
Here, Beckon, in contrast to the failure in 36 Wis. impossi- 504, at which at "made it contemplated ble for the courts to make the review," the Board's insufficient denial letter Blum to does not prevent determining from court whether a "clear statutory exception" applies requested to the interim grades. We conclude that since the Board's denial of justified sought access is the because information is exempted by § 118.125, STATS., from disclosure the specifically statutory exemp- Board's failure to cite the preclude us, tion court, does not or the trial from determining whether the Board was authorized to deny request. the posits "[n]o
The dissent that hint of the distinction today by majority suggested." made the has been Dis- past sent at 393. We are not certain that "hints" in opinions possible necessary of future distinctions are appropriate order for a distinction made to be in an distinguishing case. Nevertheless, we believe that justified by statutory record aсcess denials "clear correctly The dissent that require *11 contrary,2... 2 Stats., 19.35(1), begins: statute, § "access" The basic law, any requester has by provided "Except as otherwise any inspect record." right to court.) by (Emphasis the Munroe excep- statutory that a maintains dissent also balancing has public policy distinction tion versus previously citing by rejected Munroe court, this been Pangman Zellmer, 163 Wis. v. & Associates and 1991). (Ct. App. at Dissent 538 1070, suggestion agree with the dissent's We do 394-95. Pangman Munroe. overrules that our decision 389 The statute under consideration in Pangman, 19.85, is STATS.,7 statutory not a "clear to exception" § 19.35, Rather, 19.85 only is "indicative of Stats. § § it: public policy" and
may grounds be as denying public used access to authority if the legal record or . . custodian . makes a specific demonstration that there is a need to restrict access at the time that the request inspect copy to or is record made. 19.35(1)(a) 19.35(1)(a),
Section Thus, essen Stats.8 § Beckon /Breier rule when a tially statutory creates a 19.85, public policy STATS., indicated upon relied § for a denial. We aware no similar requirement applying statutory "clear exceptions" 19.35, to § Stats.
We concluded in
Pangman
that no
cited
statutes
City of Milwaukee
applicable
were
to the records
consideration,
under
than
19.85, other
pre-
as
§
viously discussed. Pangman,
1084,
7 19.85, STATS., Section exemptions Open sets forth Meetings Law, 19.81-19.98, Stats. §§ 8 Pangman In & Zellmer, Associates v. 163 Wis. 2d (Ct. 1991), specifically N.W.2d we on relied discussion in Oshkosh Library Northwestern Co. v. Oshkosh Bd., App. 1985), which STATS., 19.85, clear statutory makes is not a exception Law, the Open merely Records but a shorthand statement of public policy requiring various exposition considerations balancing by a custodian: *12 19.35(1), acknowledge Stats., exemp- We that sec. that states the meeting may pursuant a tions under which closed be held to sec. public [However], policy. 19.85 are indicative of . . . the custodian public specific policy
must state
reasons for the refusal.
Oshkosh,
485,
Our decision holding Braatz, 442, in Munroe v. 1996). We held that "the reasons N.W.2d 451 [Department Regulation and advanced sought- Licensing] denying public access to the public policy not considerations after records do raise disclosing to overcome the interest sufficient at 455. The custodian them." Id. at 549 N.W.2d rely public policies Pangman, sought on there, as in to by § that 19.85, STATS., and we determined indicated adequately justified had not the denial the custodian 2d at Munroe, on that basis. 201 Wis. statutory in Munroe of
at 454. Our exceptions discussion acknowledge- previously quoted was exceptions preemptive statutory have a ment that recognition Open Law, effect on the Records statutory exceptions applied there to the records no at 454. 448-50, Id. at under consideration. summary, § 118.125, In we conclude that prohibits of individual student which the disclosure statutory exception grades others, is a clear failure to 19.35, mandate of Board's access Stats. denying properly specify access to a stu- a reason for grades not, therefore, entitle Blum dent's compel does Our conclusion should be
their disclosurе. or obfuscation as an endorsement of silence construed denying open request. authority when an *13 authority obligated 19.35(4), An under to notify requester a of the reasons for a denial of access. only authority comply We hold that the failure of an to require with one statute does not a court to order it to violate another.
By the Court.—Order affirmed. (dissenting). Thirty years ago,
DYKMAN, P.J. supreme adopted requiring court a rule custodians to give withholding government reasons for documents public scrutiny. police from A chief had refused an attorney's request for records of citations issued a particular police giving officer, no reasons for that police refusal. The сourt determined that the chiefs give specific refusing failure to public reasons for to release a required record the release of that record adequate might given: whether or not reasons later be No doubt a plausible number of and perhaps valid reasons for withholding these documents could and, have specified been if specified, so the trial might court after the determination outlined in [State Owens, exrel. Youmansv. 672, 137 (1965)] N.W.2d 470 upheld police have chiefs determination. But given, no reason was and from the record it is obvious attempt that no was made police chief of or his representatives comply with Youmans and its rationale. concludе, We thus consistent with the admoni- Youmans, where, tion of here, specific as no given reason was withholding for public a record from inspection, the writ of compelling mandamus production its should issue as a matter of course. Emery, Beckon v. 36 Wis. 510, 518, 153 (1967). expanded course" rule was
This "matter of give a custodian's failure to reasons include not withholding public failure to record, but a custodian's withholding give adequate record: reasons for *14 gives gives If custodian no reasons or insuffi- the record, a withholding public writ cient reasons the compelling production the of of mandamus Beckon, supra 518, states, records must issue. at right doc- inspect "[T]here is an absolute stated specifically of ument the absence sufficient contrary." (Emphasis supplied.) reasons to the Newspapers, 427, Breier, 417, 89 Wis. 2d 279 Inc. v. (1979). 179, 184 N.W.2d Newspapers, "matter of course" Inc., this
Since
uniformly applied. No hint of the distinc
rule has been
suggested.
today by
majority
made
has been
tion
82, 92, 552
Bubolz,
Chvala v.
204 Wis. 2d
N.W.2d
See
(Ct.
1996);
Chrysler-Plymouth,
App.
Mayfair
892, 896
142, 160,
2d
469 N.W.2d
Baldarotta,
Inc. v.
162 Wis.
(1991);
Board
Milwaukee Journal v.
638, 644
Regents,
607, 612
933,
n.5, 472
163
2d
942
N.W.2d
Wis.
(Ct.
1991); Pangman
App.
Zellmer, 163
& Assoc. v.
(Ct. App.
538,
1070, 1084-85,
2d
473 N.W.2d
544
Wis.
1991);
429,
Foust, 165 Wis. 2d
ex rel. Richards v.
State
(1991);
Bock, 149 Wis.
608, 612
Fox v.
439, 477 N.W.2d
(1989); Oshkosh
416,
589,
595
403,
2d
Library
Bd., 125 Wis.
Co. v. Oshkosh
Northwestern
(Ct.
1985);
App.
480, 483,
459, 461-62
373 N.W.2d
Hathaway
1,
388,
116 Wis. 2d
Dist. No.
v. Joint Sch.
(1984).
of these cases
682, Four
404, Mayfair,
upon
the case
which
more recent than
majority
"matter of
conclusion that
bases its
statutory open
inapplicable
course" rule is
exemptions.
rejected
major
Indeed, we have
the distinction the
ity
kept
makes between records
confidential
statute
and those made confidential
use of the test which
openness against
Pangman
balances
harm. In
&
Zellmer,
Assoc. v.
1070,
Pangman,
We faced a similar situation in Munroe Braatz,
v.
(Ct.
1996),
App.
201 Wis. 2d 442,
394
[statutory]
any
448,
reason." Id. at
See also Nichols v. 199 Wis. (1996); Munroe, 201 Wis. 2d at N.W.2d at 454. possible square I do not believe that it is majority's conclusion with the rules set out these response to Blum's cases. The Board of Education's request giving requested open was that and that the information information was a burden majority incomplete. agrees was immaterial support a denial reasons are insufficient to those requested someone, counsel, either of the records. Thus hypothesized or consid- the trial court or this court has *16 deny § 118.125, STATS., to Blum's reason, ered a open to wit: request. records writing slate,
Even were we on a clean without Northwestern, Tratz, Munroe, in rules set out Oshkosh Pangman and the other cases I I noted, have would not make the I distinction made that majority. agree Inc. Mayfair Chrysler-Plymouth, Baldarotta, v. 2d 142, 156-60, (1991), Wis. 643-45 two gives reasons for the rule that a records custodian must to an respond records with open request specific- (1) These reasons are: ity. arbitrary control behavior (2) custodians; records sufficient provide notice to requеsters to enable them to challenge denial and to provide judicial basis review.
I do not believe that these are valid if reasons a custodian denies access on public policy grounds. We have seen an example arbitrary using behavior stat- Pangman. utory reasons in There are at least 174 statutes and court supreme rules that material exempt disclosure, from records open most are not found in 19 of the statutes.1 Chapter decision majority's upholds right of records custodians to respond with 299.55, STATS., example: provides For small gov § relating regulation ernment records to the of used oil fuel subject open law, facilities are to the records but that undеr conditions, may certain some of those records become confiden 757.93, Stats., tial. Section judicial makes § commission proceedings Adoption may confidential. records not be disclosed except 48.93(1d), under certain circumstances. Section § Stats. A pardon application statement in a containing reference to the subject open address of a victim is not records law. Section 304.10(3), 29.38(9), Stats. Section makes confidential certain regarding weight the value or of clams and the they location where Reports were collected. and records of sex by therapists ual contact exempt are confidential and "are from 19.35(1)." 940.22(4)(а), disclosure under s. Section STATS. Cer drafting Legislative tain records of the Reference Bureau are 13.92(1)(c), 93.50(2)(e), confidential. Section STATS. Section open excludes from the records law information and STATS., records obtained farm mediation and arbitration. And some *17 leaving appellate irrelevancies, counsel or trial and statutory exemption might courts to discover which applicable. be encourages arbitrary I conclude that this discourag- records custodians rather than behavior ing it. considering responses
In addition, irrelevant as surely requester adequate a to chal- does not enable lenge open help records denial and cannot us to response review the case. If a of "burden on administra- immateriality incompleteness" staff, tive is response I can think sufficient, what is insufficient? of nothing. if course, Of a court examines the list of statu- tory exemptions open to the records law and concludes apply, pro- that none the custodian can be ordered to expense vide the records. But after and frustration everyone except I for ing the records custodian. am unwill- venture.
to embark on this new majority's sympathetic I am with the concern that comply require- the failure a with the of custodian require specificity ment of should not a court to issue a statutory exemption writ of mandamus in the face of a open records law. The answer this is twofold. legislature appellate First, and Wisconsin's both long ago courts have concluded that the benefits of outweigh requiring specific a answer from a custodian releasing or inconvenience of embarrassment might kept record that policy have been secret. We have openness government in If Wisconsin. we openness, err on the side of that error is consistent with provides: policy. 19.31, this Section representative In that a recognition of the fact government dependent upon is an informed electo- Society kept secret. records collected the State Historicаl 16.61(13)(d), Section STATS.
rate, public policy it declared to be the of this greatest are entitled to the persons state that all gov- possible regarding information the affairs of and the official acts of those officers and ernment *18 Further, providing them. employes represent who persons with such information is declared to be representative government essential function of a of the routine of officers integral part and an duties employes responsibility provide whose it is to end, such information. To that ss. 19.32 to 19.37 every pre- in instance with a shall be construed access, complete public of consistent with sumption governmental the conduct of business. The dеnial of public generally contrary public access to the interest, only exceptional may in an case access be denied. require litigants identify
Second, often to courts theory upon they rely. of law A the statute or which though Thus, do often results in failure to so waiver. variety Chapter 893, sets out a of statutes of requires com limitation and that actions shall be years menced within a scheduled number of or be may statutory right by party barred, waive this fail a ing timely to raise it. Robinson v. Med. Mount Sinai (1987). Ctr., 1, 17, 717 Wis. though is true even a defendant has a constitu This right rely Westphal tional to on a of limitation. statute Co., 347, 373, v. E.I. du Pont de Nemours& 1995). Our Constitu grant significant rights persons of tions accused Reports crime, thе United States and but Wisconsin examples rights by of the filled with waiver those failure them. to assert
It is consistent with Wisconsin's doctrine of waiver require specify a records custodian to the reasons why withholding a he or she is access to record. a court It is also consistent with the waiver doctrine for deciding reasons when to consider asserted kept public records should secret. A court whether be a of limitation when the statute does violate statute timely brought is not to the court's attention. A court rights by does not violate a defendant's constitutional theory failing or to consider a constitutional not cited argued by does a the defendant. Nor court violate statutory exemption open records exam- law ining only given for the reasons custodian nondisclosure. responds "forget today,
After a school district open request pupil it" to an for records will see response appeal, that response affirmed on while the same request prison employees'
to a addresses directing of that will result an order release notwithstanding proper response information, that a being in the latter case would have led to the records *19 Morke Record Cus- held confidential. See State ex rel. v.
todian, 722, 726, 1990). today, After records custodians need not replying open records concern themselves with they may requests kept if believe the record be secret statutory exemрtion. petition of a If a for a writ because attorney brought, of mandamus is the custodian's can why kept then the record should be reasons search government keeping secret. The result is that secret litigation encouraged. accomplish, will be easier to and legislative § 19.31, STATS., directive found in Given developing common I that courts should be believe secrecy. government open records, law favor may supreme has that we not over court said published Cook, 208 rule our own decisions. See Cook v. (1997). 166, 190, 560 246, 256 Nonethe Wis. today. I less, I that we have done so believe believe distinction between majority's statutory com- mon law to our exemptions law is open I unnecessary, ultimately illusory. therefore respectfully dissent. notes "courts often liti gants identify theory to the statute or of upon they law which rely." Here, Board, 398. response Dissent at the in its to the petition, mandamus did the identify upon statutes and theories sought rely. which it to required The trial court thus was not "hypothesize" applicable statutory the exception, nor was it required to panoply statutory examine the entire of exemptions any to see if might apply. any not suggesting appel We are late waiver doctrines be statutory abandoned. When a clear exception Open however, applies, Records Law we con clude there is no reason to pre- extend the waiver rule to litigation parties. communications between the only by public policy justifiable exceptions" those from the in several of in fact foreshadowed considerations Mayfair, at Wis. 2d In dissent. in the cited cases discussion an extensive 646, after at 163, 469 N.W.2d previ- with rule concluded the Beckon/Breier of ously supreme court rule, for cited reasons a denial the reasons that where determined to con- not refuse well-known," it would "obvious Braatz, 201 v. In Munroe of the denial. the merits sider (Ct. App. 451, 454 448-49, 549 N.W.2d Wis. 2d 1996), court said: this displace other law does providing for confi- provisions the statutes of dentiality particular Indeed, the records. express- provisions law are of the access basic ly of other laws on absence conditioned