Milwaukee Journal v. Board of Regents of University of Wisconsin System

• Decision Date: 08 November 1990
• Docket Number: No. 90-0205,90-0205
• Citation: 163 Wis.2d 933,472 N.W.2d 607
• Parties: , 69 Ed. Law Rep. 145, 19 Media L. Rep. 1626 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.
• Court: Wisconsin Court of Appeals

Page 607

472 N.W.2d 607

163 Wis.2d 933, 69 Ed. Law Rep. 145,

19 Media L. Rep. 1626

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 Nov. 8, 1990.

Opinion Released: June 27, 1991.

Opinion Filed: June 27, 1991.

Melany Stinson Newby of Office of Administrative Legal Services, Madison, for defendants-appellants.

Linda M. Clifford of LaFollette & Sinykin, Madison, for plaintiffs-respondents.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

EICH, Chief Judge.

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 sec. 230.13(2), Stats., which authorizes the secretary of the Department of Employee Relations (DER) to keep records of the "[n]ames of applicants other than those certified for employment" ¹ closed to the public, constitutes a mandatory exception to the state's open records law shielding the names of applicants for unclassified positions in the state service from public disclosure. We conclude that it does not and affirm the judgment.

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 sec. 230.13(2), Stats. The Journal then filed a mandamus action seeking release of the information. The university's position remained the same: its answer to the complaint asserted that sec. 230.13(2) "require[d] closure of the records...."

The trial court ruled that sec. 230.13(2), Stats., did not apply to the positions, and that even if it did, the university, in deciding to deny access to the requested information, had failed to exercise the discretion required by the statute's permissive language ("may keep [the] records ... closed to the public").

The university appeals, repeating the arguments made below. Like the trial court, we see sec. 230.13(2), Stats., as inapplicable to the two positions, and we conclude that the statute neither mandates nor authorizes closure of the records.

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 dependent 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 open 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 there 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 sec. 230.13(2), Stats., which it claims provides a specific and mandatory ² public-records-law exemption for the names of applicants for jobs in the unclassified state service.

We begin our consideration of the university's argument with the proposition that any exception to the "general rule" of openness and disclosure must be "narrowly construed." Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis.2d 480, 482, 373 N.W.2d 459, 461 (Ct.App.1985).

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 sec. 230.13(2), Stats.

Chapter 230, Stats., embodies the state's employment relations law. Among other things, it establishes a civil service, provides for the hiring and firing of state employees and generally governs their evaluation and overall treatment. DER, through its secretary, administers the law.

Chapter 230, Stats., divides state employment into two categories: the "classified" service and the "unclassified" service. Sec. 230.08. The unclassified service comprises positions specifically designated in sec. 230.08(2). Generally, the list includes elected officials and officers appointed by the governor, deputy departmental secretaries, division administrators and a variety of other--mostly policy-making or administrative--positions. As for the university, all faculty and academic staff positions--including the athletic director and football coach--are unclassified. Sec. 230.08(2)(d).

The classified service is defined in the statute as: "all positions not included in the unclassified service." Sec. 230.08(3), Stats. Generally, the classified service comprises those labor, clerical, technical and professional positions involved in the day-to-day workings and operations of state government; and the bulk of ch. 230 sets forth in detail the recruitment, application, examination, certification, hiring, promotion and termination processes applicable to such employees.

Appointments to positions in the classified service are made pursuant to a "merit" selection plan based upon competitive examinations. Sec. 230.15(1), Stats. The examinations are part of a process culminating in the "certification" of the top five applicants for a particular position to the appointing authority; and sec. 230.25(2) directs that the final appointment "shall be made ... to all positions in the classified service from among those certified...." Secs. 230.25(1) and (2).

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 sec. 230.13(2), Stats., which, as indicated, allow the DER secretary to keep confidential the names of applicants for state jobs "other than those [who have been] certified for employment."

We believe the statutory language can 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 the certification process is limited to classified positions no applicants for positions in the unclassified service are ever certified. Thus, reading the statute in this manner would permit withholding the names of all applicants for any unclassified position in state service (including that of athletic director and football coach) as persons "other than those certified for employment."

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 sec. 230.13(2), Stats., to classified positions.

Thus, as we read the statute, the only names that may be withheld from public scrutiny under its provisions are the 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 confidential, the state has no business shielding...