Gierl v. Mequon-Thiensville Sch. Dist.

Decision Date07 December 2022
Docket Number2021AP2190
PartiesMark Gierl, Petitioner-Respondent, v. Mequon-Thiensville School District, Respondent-Appellant.
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for Ozaukee County: Cir Ct. No. 2020CV240 STEVEN MICHAEL CAIN, Judge.

Before Gundrum, P.J., Neubauer and Grogan, JJ.

GUNDRUM, P.J.

¶1 Mequon-Thiensville School District contends the circuit court erred in granting Mark Gierl's motion for summary judgment on his writ of mandamus and ordering the District to release a parent e-mail list to Gierl as he had requested. We conclude the court did not err.

Background

¶2 Gierl's petition for a writ of mandamus states:

On June 24, 2020, the District sent out an email inviting "parents and guardians in our school community to participate in a webinar this Friday on the topic of privilege and race." The email described the webinar, titled "The Talk: A Necessary Conversation on Privilege and Race with Our Children," as including topics such as the "transitional model of change," the "spectrum of racism," the "Phenomenon of the George Floyd case" and "interventions to help become a powerful ally."

Gierl subsequently requested from the District the list of e-mail addresses to which the invitation was sent. In response, the District sent Gierl a letter indicating the invitation was sent to "all parents and staff members" of the District. The District provided the list of all staff e-mail addresses to which the invitation was sent but refused to provide the list of parent e-mail addresses, stating, "the District does not believe that there is a statute or case explicitly requiring or prohibiting disclosure of the list of parent email addresses and as such, we have decided to respectfully decline your request for parent email addresses." Within the letter the District also referred to a 2010 letter by an assistant attorney general indicating it was not unreasonable under the Wisconsin public records law balancing test for the District of South Milwaukee to deny a request for parent e-mail addresses on the district-stated basis that disclosing parent e-mail addresses would inhibit parent-school communication by discouraging parents from providing their e-mail addresses.[1] ¶3 Gierl filed this petition for writ of mandamus pursuant to the public records law, seeking the list of parent e-mail addresses to which the June 24, 2020 invitation was sent. The parties filed cross-motions for summary judgment, and the circuit court granted summary judgment to Gierl. The District now appeals.

Discussion

¶4 The District contends the circuit court erred in granting Gierl summary judgment and ordering the District to release the parent e-mail addresses. We conclude the court did not err.

¶5 Our review of a circuit court's decision on summary judgment is de novo. Behrendt v. Gulf Underwriters Ins Co., 2009 WI 71, ¶11, 318 Wis.2d 622, 768 N.W.2d 568. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

¶6 In regard to Wisconsin's public records law, we have stated:

When addressing an open records request, a records custodian must make the initial decisions on whether a requested item is a "record" and whether any statutory or common law exceptions to disclosure apply. If the custodian determines that the item is a record and no exceptions apply, the custodian must then conduct a balancing test to "weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection."
If the custodian's decision is challenged, however, a court must make its own independent decisions regarding these matters, including the balancing test. "The duty of the custodian is to specify reasons for nondisclosure and the court's role is to decide whether the reasons asserted are sufficient." If the custodian states no reason or insufficient reasons for refusing to disclose the information, the writ of mandamus compelling disclosure must issue. A court should apply the balancing test "when the record custodian has refused to produce the record, in order to evaluate the merits of the custodian's decision." Where … the relevant facts are undisputed, we review de novo a custodian's balancing decision of whether the public interest in nondisclosure of the challenged information outweighs the public interest in disclosure. It is the burden of the party seeking nondisclosure to show that "public interests favoring secrecy outweigh those favoring disclosure." Access is only to be denied "in an exceptional case."

John K. MacIver Inst. for Pub. Pol'y, Inc. v. Erpenbach, 2014 WI.App. 49, ¶¶13-14, 354 Wis.2d 61, 848 N.W.2d 862 (emphasis added; citations omitted).

¶7 Furthermore, the legislature has written:

[I]t is ... 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 employees who represent them.... [P]roviding persons with such information is declared to be an essential function of a representative government .... To that end, [Wis. Stat. §§] 19.32 to 19.37 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.

Wis. Stat. § 19.31 (2019-20)[2] (emphasis added). As our supreme court has noted, this statement "is one of the strongest declarations of policy to be found in the Wisconsin statutes." See Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶49, 300 Wis.2d 290, 731 N.W.2d 240. Following this declaration, Wisconsin maintains a "strong presumption of complete openness with regard to public records." Id., ¶55.

¶8 The District asserts that the parent e-mail addresses do not relate to the "affairs of government and the official acts of those officers and employees who represent them." Like the circuit court, we disagree. The District, a government entity, uses government resources to collect e-mail addresses of District parents and then uses those e-mail addresses to promote and advance selected matters of interest to District personnel. As the circuit court noted:

The record … shows that the district used th[is] distribution list between the period of July 1, 2018, and June 30 of 2020 for a multitude of communications. Much of it dealing with school and primarily student-focused communications such as school closures, bus routing, enrollment reminders, parent surveys. The types of things that you would expect a district would communicate with its parents.
But the district also used th[is] list to engage in other communication that really may stray from what traditionally would be considered school related. And that includes inviting persons or parents to public events. In a particular note [o]n March 24th of 2020[,] the district sent emails from the school board president encouraging voting on its referendum that was upcoming. June 4th of 2020[,] the district emailed a statement from the superintendent and the board regarding the George Floyd incident that had occurred about a week prior, I believe.
June 18th of 2020[,] the district used the list to comment on student social media posts that allegedly occurred outside of the school and not on school property. And that email spoke to the district's commitment to educating, quote, the community about issues of race inequity and then referred to the talk presentation that was upcoming. And that's the presentation invitation that is the subject of Mr. Gierl's record request.
The district also uses its distribution list to send a newsletter called Momentum. And Momentum is, again, while primarily focused on school or district-related content, it does periodically include items that could be construed, and these are the Court's words, I would refer to it as community outreach. And that type of information clearly would be of interest to perhaps the broader Mequon-Thiensville community.
And items that have been included in the Momentum magazine or newsletter in the past are updates or information regarding the district's legislative committee, which is a committee that may lobby or seek to influence policy as it relates to school districts. It included items regarding a workshop to perhaps inform or encourage people to serve on its school board. It promoted its employee health clinic. And it provided information regarding workshops specific to long-range planning, facilities updates, and, again, the referendum that … based on the record must have occurred in spring of 2020.
The talk announcement email of June 24th, 2020, was specifically directed to, quote, members of the school community. It was inviting, quote, members of the school community to attend. And, again, in the Court's view, again, engaging in what I'll refer to as community outreach.
Again, ultimately the talk webinar occurred on June 26th of 2020. And the content, again, was generally on the topic of race inequity. And the record demonstrates that at the closing of that webinar that the superintendent of the district encouraged participants in the webinar to, quote, advocate at the community-wide level for change you see needed. Period. It can't just happen in the hallways of the school.

….

[T]he school district has made a determination through a superintendent or board that it wishes to engage in, again what the Court is referring to as more of community outreach. And in some case[s] even advocating for particular
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