Osborn v. BOARD OF REGENTS OF UNIV. OF WISCONSIN

• Decision Date: 30 August 2001
• Docket Number: No. 00-2861.,00-2861.
• Citation: 2001 WI App 209,247 Wis.2d 957,634 N.W.2d 563
• Parties: J. Marshall OSBORN and Center for Equal Opportunity, Plaintiffs-Respondents-Cross-Appellants, v. BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellant-Cross-Respondent.
• Court: Wisconsin Court of Appeals

247 Wis.2d 957

2001 WI App 209

634 N.W.2d 563

J. Marshall OSBORN and Center for Equal Opportunity, Plaintiffs-Respondents-Cross-Appellants, v. BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM, Defendant-Appellant-Cross-Respondent.¹

No. 00-2861.

Court of Appeals of Wisconsin.

Submitted on briefs April 18, 2001.

Decided August 30, 2001.

On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of James E. Doyle, attorney general, and Alan Lee, assistant attorney general.

On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the brief of Daniel Kelly of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C. of Milwaukee. Before Dykman, Roggensack and Deininger, JJ.

¶ 1. ROGGENSACK, J.

J. Marshall Osborn and the Center for Equal Opportunity made public record requests to the University of Wisconsin System for records of applicants to its campuses and two graduate schools. The circuit court granted the requests for records of those applicants who had not enrolled at the University, but it denied the requests for those who had matriculated, including a request by Osborn that personally identifiable information be redacted from their records prior to production. The University appealed, and Osborn cross-appealed. Because we have concluded that all the records sought are education records for which 20 U.S.C. § 1232g and public policy prohibit disclosure and because the University is not required to create records to satisfy Osborn's request, we reverse the order to provide records of applicants who did not enroll and affirm the circuit court's decision to refuse to direct the University to create new records for the applicants who did enroll.

BACKGROUND

¶ 2. This appeal arises out of public record requests directed to the University of Wisconsin System pursuant to WIS. STAT. § 19.35 (1999-2000)² which sought records relating to applicants for admission³ to eleven campuses in the University System, the University of Wisconsin Law School and the University of Wisconsin Medical School for 1993 to 1999. It is asserted that the requests were made to facilitate the study of the effects of race, ethnicity, immigration and other factors on the University's admission decisions. Osborn also planned to distribute the information received to media, public officials and the public.

¶ 3. The University responded by providing more than 390 pages of records to Osborn, but it did deny some requests.⁴ In part, the denials were based on the University's not maintaining the information requested, and in part on the University's determination that it was prohibited from disclosing the requested records for the following reasons: (1) the University's obligations in regard to the requested records under the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g, as amended; (2) the public interest in maintaining the privacy and reputational interests of the enrollees and applicants for admission outweighs the public interest in disclosure; and (3) the lack of a requirement to create new records in order to satisfy Osborn's requests.

¶ 4. In an attempt to compel the production of the requested records, Osborn brought a mandamus action in the circuit court. The court sustained the University's determination that 20 U.S.C. § 1232g prohibited it from disclosing the records for those applicants who did enroll in the University and that it was not required to create new records to satisfy Osborn's requests. The court also held that neither federal nor state law applied to records of those applicants who had not matriculated at the University because they were not "students" under those laws, and it ordered the production of their records. The circuit court did not conduct a balancing of the applicants' privacy and reputational interests with the public's interest in disclosure to determine whether, on balance, public policy favored access to or denial of the records. The University appeals the order directing it to produce the unenrolled applicants' records, and Osborn cross-appeals the court's refusal to order production of the records of those applicants who did matriculate, redacted to remove personally identifiable information.

DISCUSSION

Standard of Review.

[1-3]

¶ 5. Whether a circuit court's order is final is a question of law, which we review de novo. Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655, 657 (1979)

. We also review as a question of law whether federal or Wisconsin statutes were properly applied to the undisputed facts before us. State ex rel. Blum v. Board of Educ., Sch. Dist. of Johnson Creek, 209 Wis. 2d 377, 381, 565 N.W.2d 140, 142 (Ct. App. 1997). Additionally, the application of the balancing test to a request for access to public records presents a question of law, which we decide independently of any action or inaction by the circuit court. Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis. 2d 768, 784, 546 N.W.2d 143, 149 (1996).

Finality.

¶ 6. Osborn contends that the circuit court's order is not final because the court did not know whether certain records existed in the form requested, and the court did not rule on the sufficiency of the law school's response. He argues there were factual and legal questions that remained unresolved; therefore, this appeal should be dismissed. The University counters that, notwithstanding those concerns, the court's decision covered all factual alternatives and legal questions. Therefore, the decision resolved all issues relating to what information the University was required to provide or not provide, which caused the circuit court's order to be a final order.

[4, 5]

¶ 7. Only final orders may be appealed as of right. WIS. STAT. § 808.03(1). The test for whether an order of a circuit court is final is whether the court contemplated that it be final at the time of entry of the order. Fredrick, 92 Wis. 2d at 688,285 N.W.2d at 657. Here, the circuit court decided that the University was not to fulfill the objected-to requests for any student who enrolled at the University and that it was required to provide those records for applicants who did not enroll. It also decided that the University was not required to create records to satisfy Osborn's requests. That it was unknown whether the University maintained a certain type of record is of no consequence because, if it did and the court ordered its production, the University was obliged to comply, and if the record did not exist, obviously the University could not comply. The circuit court also applied its order to the law school, which had responded but which response the court had not had the opportunity to review. Therefore, its order addressed each item in controversy in a way that established the rights of the parties to the mandamus action. Accordingly, we conclude it was a final order.

The Public Records Requests.

1. General Principles.

[6-8]

¶ 8. Upon a proper written request, a requester has the statutory right to inspect records kept by state agencies. WIS. STAT. § 19.35(1). Wisconsin courts have long recognized that records of government agencies should be open and available to the public as a necessary component to maintaining an informed electorate in a representative form of government. WIS. STAT. § 19.31; Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 155, 469 N.W.2d 638, 642 (1991). The Wisconsin Supreme Court has held that:

[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. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682, 687 (1984). However, the open records laws are not without limits, particularly when personally identifiable information bearing on privacy and reputational interests is sought. Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of Sch. Directors, 227 Wis. 2d 779, 786, 596 N.W.2d 403, 406 (1999). Additionally, certain records which are specifically exempted from disclosure by state or federal law or which are authorized to be exempted from disclosure by state law need not be produced. WIS. STAT. § 19.36(1).

[9, 10]

¶ 9. A written request for public records that has been denied in whole or in part by a state agency is brought before the circuit court by an action for mandamus. WIS. STAT. § 19.37. On appeal of a circuit court's order in such an action, we engage in a step-by-step analysis to determine whether records have been appropriately denied or provided. Wisconsin Newspress, 199 Wis. 2d at 784, 546 N.W.2d at 149. First, we decide whether the custodian's denial of access was made with the requisite specificity. Id. Second, we determine whether the stated reasons were sufficient for denial or an order directing access. Id. In regard to that second step, we also examine whether the circuit court made a factual determination based on the evidence of record, unless the facts are undisputed, whether the requested documents implicated a public interest in secrecy if so asserted by the custodian and, if they do, whether those interests outweigh the public's interest in access to the records. Id. However, if the information requested is specifically exempted from disclosure by a statute, then there is no need for the custodian to weigh competing public interests, as the legislature has already done so by the statutory exemption. Blum, 209 Wis. 2d at 387, 565 N.W.2d at 145. [11]

¶ 10. Here, one of the University's bases for objection was its obligation under 20 U.S.C. § 1232g to maintain the privacy of these records. That is an objection made with the requisite degree of specificity. Rathie v. Northeastern Wisconsin Technical Inst., 142 Wis. 2d 685, 687, 419 N.W.2d 296, 297 (...