Rathie v. Northeastern Wisconsin Technical Institute

• Decision Date: 22 December 1987
• Docket Number: No. 87-1544,87-1544
• Citation: 142 Wis.2d 685,419 N.W.2d 296
• Parties: , 44 Ed. Law Rep. 1335 Ursula RATHIE, Plaintiff-Appellant, v. NORTHEASTERN WISCONSIN TECHNICAL INSTITUTE and William C. Evans, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 296

419 N.W.2d 296

142 Wis.2d 685, 44 Ed. Law Rep. 1335

Ursula RATHIE, Plaintiff-Appellant, v. NORTHEASTERN WISCONSIN TECHNICAL INSTITUTE and William C Evans, Defendants-Respondents.

No. 87-1544.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 19, 1987.

Opinion Released Dec. 22, 1987.

Opinion Filed Dec. 22, 1987.

Joseph M. Nicks of Godfrey & Kahn, S.C., Green Bay, for plaintiff-appellant.

Robert W. Burns of Mulcahy & Wherry, S.C., Green Bay, for defendants-respondents.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Ursula Rathie appeals the dismissal of a petition for writ of mandamus. The petition seeks to compel Northeastern Wisconsin Technical Institute (NWTI) to disclose certain student "Attendance and Grade" forms, including the name, social security number, telephone number, class attendance record, and final grade of each student enrolled in the courses. Rathie claims that she is entitled to the student records pursuant to the Wisconsin open records law, sec. 19.35(1)(a), Stats. We disagree and affirm.

Both parties agree that the reason for nondisclosure originally articulated was that release of the requested forms would violate the Family Educational Rights and Privacy Act, commonly known as the Buckley Amendment, 20 U.S.C.A. sec. 1232g. ¹ NWTI had informed Rathie of this concern, but stated that they would release the requested student records in the event the United States Department of Education indicated that disclosure would not violate the Act. Accordingly, advice was requested in that regard from the Family Educational Rights and Privacy Act Office, whereupon the Director responded that disclosure of the requested records could be made only with the students' prior written consent. Rathie declined to pursue this option, seeking instead to compel disclosure through writ of mandamus. The mandamus petition requested the release of the Attendance and Grade forms in their entirety. The trial court dealt solely with the issue of whether the requested Attendance and Grade forms were attainable in their entirety and that is the posture of the issue as presented to this court.

In mandamus actions seeking to compel disclosure of public records, we examine the sufficiency of the custodian's stated reasons for denial of the request as a matter of law. Newspapers, Inc. v. Breier, 89 Wis.2d 417, 428, 279 N.W.2d 179, 184 (1979). The presumption of the open records law is that there is a right to inspect a public document, and that it is only in the exceptional case that inspection should be denied. Id. at 433, 279 N.W.2d at 187.

At common law, when not detrimental to the public interest, or expressly limited by statute, the right to examine public records existed with all persons who had a sufficient interest in the subject matter. State ex rel. Youmans v. Owens, 28 Wis.2d 672, 681, 137 N.W.2d 470, 474 (1965), modified and aff'd, 32 Wis.2d 11, 139 N.W.2d 241 (1966). Significantly, whatever limitations existed at common law exist under the open records law. Breier, 89 Wis.2d at 426, 279 N.W.2d at 183-84. Section 19.35(1)(a) provides in part:

Access to records; fees. (1) Right to inspection. (a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. (Emphasis added.)

A limitation identical to the common law limitation regarding statutory exemptions was codified and is currently reflected in sec. 19.36(1), Stats.:

Limitations upon access and withholding. (1) Application of other laws. Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s. 19.35(1).... (Emphasis supplied).

The initial question presented to the trial court was whether the federal Act specifically exempts the requested records from disclosure. The trial court, relying on Rios v. Read, 73 F.R.D. 589, 592 (E.D.N.Y.1977), concluded that the Act does not forbid disclosure. Because the Act does not provide a privilege against disclosure of student records, the trial court concluded that the Act merely provides a sanction in the event schools adopt policies of releasing student records. The trial court based its premise that the Act merely threatens financial sanctions in an effort to deter schools from adopting policies of releasing student records on the language of 20 U.S.C.A. sec. 1232g(b)(2), which provides:

(2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless--

(A) there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student's parents and the student if desired by the parents, or

(B) such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency.

Although the Act does not provide a privilege analogous to a doctor-patient or attorney-client privilege, the Act and the regulations promulgated under authority of the Act provide a confidentiality and a right to privacy. The federal Act thus specifically limits the disclosure of the requested student records. Whether this limitation amounts to a specific exemption as required by sec. 19.36(1), however, need not be reached by this court since the student records are unattainable in any case by virtue of the public policy limitation under Wisconsin's open records law.

The trial court held that the student records are exempt from disclosure under Wisconsin's open records law by virtue of the significant public policy inherent in the federal statute. We agree.

A third party's right to disclosure of public records under sec. 19.35(1) is not absolute but depends on whether the harmful effect on the public interest in disclosing the information outweighs the right of the public to have access to particular records. See State ex rel. Youmans, 28 Wis.2d at 681, 137 N.W.2d at 474. Whether harm to the public interest from inspection outweighs the public interest in inspection is a question of law. Breier, 89 Wis.2d at 428, 279 N.W.2d at 184. In the present case, there is an overriding public interest in preserving privacy of student education records. Consequently, the harmful effects on the public interest in disclosing this information outweigh the benefit to be gained by unrestricted disclosure.

This public policy is reflected in the Act and the regulations promulgated under its authority. Under the Act, the secretary of the Department of Health, Education and Welfare is directed to adopt regulations to protect students' rights of privacy, and further to enforce them through an office and review board investigating and adjudicating violations. 20 U.S.C.A. secs. 1232g(b)(4)(B), (c), (f), and (g). The HEW regulations and guidelines promulgated pursuant to this directive are currently published in 34 C.F.R. PART 99--PRIVACY RIGHTS OF PARENTS AND STUDENTS. ^{2 2} Subpart D--Disclosure of Personally Identifiable Information From Education Records provides at sec. 99.30:

(a)(1) An educational agency or institution shall obtain the written consent of the parent of a student or the eligible student before disclosing personally identifiable information from the education records of a student, other than directory information, except as provided in sec. 99.31. (Emphasis supplied).

Education records are those records or documents maintained by the institution or agency that "contain information directly related to a student." 20 U.S.C.A. sec. 1232g(a)(4)(A)(i). Personally identifiable information means data or information including:

(a) the name of a student, the student's parent, or other family member, (b) the address of the student, (c) a personal identifier, such as the student's social security number or student number, (d) a list of personal characteristics which would make the student's identity easily traceable, or (e) other information which would make the student's identity easily traceable.

34 C.F.R. sec. 99.3 at 302.

The requested information contained in the Attendance and Grade forms comes within the scope of educational records directly relating to a student. Just as clearly, the forms fall within the definition of personally identifiable information since they include the students' names, social security numbers, telephone numbers, class attendance records, and grades.

The Act does provide that certain personally identifiable information may be...