Osborn v. Board of Regents, 00-2861.

• Decision Date: 02 July 2002
• Docket Number: No. 00-2861.,00-2861.
• Citation: 254 Wis.2d 266,647 N.W.2d 158,2002 WI 83
• Parties: J. Marshall OSBORN and Center for Equal Opportunity, Plaintiffs-Respondents-Cross-Appellants-Petitioners, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellant-Cross-Respondent.
• Court: Wisconsin Supreme Court

254 Wis.2d 266

2002 WI 83

647 N.W.2d 158

J. Marshall OSBORN and Center for Equal Opportunity, Plaintiffs-Respondents-Cross-Appellants-Petitioners, v. BOARD OF REGENTS OF the UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellant-Cross-Respondent.

No. 00-2861.

Supreme Court of Wisconsin.

Oral argument April 30, 2002.

Decided July 2, 2002.

For the plaintiffs-respondents-cross appellants-petitioners there were briefs by Daniel Kelly and Reinhart Boerner Van Deuren S.C., Milwaukee, and oral argument by Daniel Kelly.

For the defendant-appellant-cross respondent the cause was argued by Alan Lee, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

An amicus curiae brief was filed by Michael D. Dean and Dean & McKoy, S.C., Waukesha, and Lucy A. Dalglish, Gregg P. Leslie, and Youngmee Moon, Arlington, Virginia, on behalf of the Reporters Committee for Freedom of the Press and Student Press Law Center.

¶ 1. N. PATRICK CROOKS, J

In this case, we review a court of appeals' decision, Osborn v. Board of Regents of the University of Wisconsin System, 2001 WI App 209, 247 Wis. 2d 957, 634 N.W.2d 563, regarding whether the Board of Regents of the University of Wisconsin System (hereinafter the University) must provide documents in response to open records requests by J. Marshall Osborn and the Center for Equal Opportunity (hereinafter referred to collectively as Osborn). In 1998 and 1999, Osborn made several open record requests to the University, seeking records of applicants to its campuses, as well as the University of Wisconsin Law School (Law School) and the University of Wisconsin Medical School (Medical School). The University responded by producing some of the requested records, but largely denied Osborn's requests relating to information in student application records. In an effort to compel the University to provide the requested records, Osborn filed a mandamus action. The circuit court concluded that the University was required to grant the requests relating to applicants who had not enrolled at the University, but denied Osborn's requests relating to those who matriculated, regardless of Osborn's request that personally identifiable information be redacted. The court also concluded, however, that even for those applicants who did not matriculate, the University was not required to create new records in order to comply with Osborn's request.

¶ 2. Both parties appealed and the court of appeals affirmed in part and reversed in part. The court of appeals concluded that all records sought—including records of both those who matriculated and those who did not—were prohibited from disclosure under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (2000), as amended (hereinafter FERPA or the Act)¹. In addition, the court affirmed the circuit court's decision refusing to require the University to create new records to comply with the open records request.

¶ 3. On review, we reverse the court of appeals' decision. We conclude that Osborn is not requesting personally identifiable information; therefore, FERPA does not prohibit disclosure of the requested information in this case. We then balance the public policy interests involved and conclude that because the request does not seek personally identifiable information, there is no overriding public policy interest in keeping the requested records confidential. Further, we conclude that based on the statutory requirement to provide information subject to disclosure and delete information not subject to disclosure as stated in Wis. Stat. § 19.36(6) (1999-2000),² the University must redact records, where necessary, in order to comply with Osborn's open records requests. We also note that the University is entitled to charge a fee for the actual, necessary, and direct cost of complying with these open record requests.

I

¶ 4. The relevant facts are not in dispute. In 1998 and 1999, Osborn requested public records from the University in order to analyze and compare data regarding the admissions policies and practices of public institutions of professional education. On April 2, 1998, in nearly identical letters, Osborn first requested public records from several of the University's campuses³ relating to applications for undergraduate admission for the years 1993 through 1997. The letter enumerated 27 public records requests seeking information in student applications, including, for example, high school grade point averages, SAT scores, race, socio-economic background, and class rank. Osborn later made virtually the same public records request for the same years to the Law School on October 19, 1999, and to the Medical School on November 10, 1999.⁴

¶ 5. On June 15, 1998, in response to the original requests to the University's undergraduate campuses, the University provided several hundred pages of documents in response to requests numbered 1 through 5 and 16 through 27. The University also responded to some of those requests by claiming that it does not maintain records of the type requested. With regard to Osborn's requests numbered 6 through 15,⁵ focusing largely on test scores, grade point averages, and class rank by race and sex, the University denied the requests, claiming that such personally identifiable information is prohibited from disclosure under FERPA, and because the public interest in disclosure is outweighed by the public interest in non-disclosure. Moreover, the University claimed that the information sought by those requests is only maintained in individual student education records and that extracting the information requested would amount to creating a new record, which, it argued, is not required under the open records law.

¶ 6. After receiving the University's denial, Osborn attempted to clarify the requests and asked the University to reconsider its decision in a subsequent letter, dated June 22, 1998. Specifically, Osborn stated in part:

[I]t was my expectation and intention in requesting this information that the various institutions would comply fully with the provisions of ... Family Educational Rights and Privacy Act ... by redacting "private information." I did not explicitly specify that personally identifiable information should be in all cases redacted because this is unquestionably required by that provision.

The University responded to Osborn's letter by maintaining its position that education records are not subject to open records requests and that the University has no duty to redact or create new records.

¶ 7. In response to Osborn's requests to the Law School and the Medical School, the University similarly provided some records, but denied several of the requests, including those for test scores, grade point averages, and class rank by race or sex.⁶ Again, the University claimed that the requests asked for personally identifiable information from education records that are protected from disclosure by FERPA and public policy. The University also repeated its argument that it is not required to create new records by extracting or redacting information.

¶ 8. On April 4, 2000,⁷ Osborn filed a complaint in Dane County Circuit Court, seeking a writ of mandamus⁸ to compel the University to produce the requested documents under Wisconsin's Open Records Law, Wis. Stat. § 19.35.⁹ The University responded by filing a motion to dismiss. On July 19, 2000, the circuit court, the Honorable Stuart A. Schwartz, presiding, granted in part and denied in part the University's motion. With regard to information relating to applicants who matriculated, the court denied the requests by concluding that the records were prohibited from disclosure by FERPA. In contrast, the court granted Osborn's request for records of applicants who had not enrolled at the University because such records are not protected as education records. The court also concluded, however, that the requested information was found only in the individual files of applicants and thus, would require the University to create a new record, which is not required under the open records law. The court concluded that in order to obtain information regarding applicants who did not matriculate, it was Osborn's responsibility to compile the desired data by viewing each individual file.

¶ 9. The University appealed and Osborn cross-appealed. In a published decision, the Court of Appeals, District IV, affirmed in part and reversed in part. Osborn, 2001 WI App 209, ¶ 25. First, the court concluded that the University's objection based on FERPA is an objection with the requisite degree of specificity. Id. at ¶ 10. Then, after looking at the definitions of "education records" and "student" in the Code of Federal Regulations, the court concluded that all records requested by Osborn are specifically exempted from disclosure under FERPA. Id. at ¶ 15. The court also concluded that even if records of the non-enrollees were not specifically protected by FERPA, disclosure was properly denied based on the public policy interest in preserving the privacy of student records. Id. at ¶ 19. The court declined to address the impact of Wis. Stat. § 118.125 because the case was resolved under federal law. Id. at ¶ 21. Finally, with regard to the University's obligation to redact, the court concluded that § 19.36(6) does not require the University to produce the records after redacting personally identifiable information. The court held that nothing in FERPA suggests that education records are subject to release, even if a student's name is redacted. The court further concluded that because the records are not subject to disclosure under § 19.35, "the University is not required to review each education record and remove part of it." Id. at ¶ 24.

¶ 10. Judge Dykman dissented. He noted the strong presumption of disclosure of public records in Wisconsin and concluded that public policy favors disclosure of the information Osborn requested. He...