State ex rel. Blum v. Board of Educ., School Dist. of Johnson Creek

• Decision Date: 06 March 1997
• Docket Number: No. 96-0758,96-0758
• Citation: 565 N.W.2d 140,209 Wis.2d 377
• Parties: , 119 Ed. Law Rep. 256 STATE of Wisconsin ex rel. Elizabeth BLUM, Petitioner-Appellant, d v. BOARD OF EDUCATION, SCHOOL DISTRICT OF JOHNSON CREEK, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

Page 140

565 N.W.2d 140

209 Wis.2d 377, 119 Ed. Law Rep. 256

STATE of Wisconsin ex rel. Elizabeth BLUM Petitioner-Appellant, ^d v. BOARD OF EDUCATION, SCHOOL DISTRICT OF JOHNSON CREEK Respondent-Respondent.

No. 96-0758.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 9, 1996.

Opinion Released March 6, 1997.

Opinion Filed March 6, 1997.

[209 Wis.2d 378] For the petitioner-appellant the cause was submitted on the briefs of Kirby E. Brant of Watertown.

For the respondent-respondent the cause was submitted on the brief of Larry Steen and Shannon A. Allen of Godfrey, Neshek, Worth & Leibsle, S.C. of Elkhorn.

Before DYKMAN, P.J., and ROGGENSACK and DEININGER, JJ.

DEININGER, Judge.

Elizabeth Blum appeals an order denying her petition for a writ of mandamus to compel the Johnson Creek School Board to provide her access to certain records under the Open Records Law. ¹ Because we conclude that the requested records are confidential "pupil records" under § 118.125, STATS., they are exempt from public access and disclosure under § 19.36(1), STATS. Accordingly, we affirm the denial of Blum's petition.

BACKGROUND

Blum, through counsel, requested the Board to provide her "a per-class report of all interim grades which existed as of February 15, 1995 and which were later averaged or otherwise incorporated into the final grade" for the eighth semester for herself and one "other student." This request was later clarified as follows:

It is simply impossible to believe that teachers had not entered any grades for tests, homework, class participation, and so on in their class books or other classroom record systems.... Those teacher-record grades are what I expect to receive.

Whether such grades were filed with the office or otherwise reported is immaterial.

The Board had awarded the 1995 Academic Excellence Higher Education Scholarship to the "other student" whose interim grades were sought. ² Although not identified by name in the record requests or in subsequent court documents, there is no question that the identity of the "other student" was known to Blum and could be discovered by "anyone."

The Board, by its president, responded to Blum's request by noting that it had already provided certain "materials and transcripts you requested" and by denying the specific request for interim grades:

As per your request for teacher records three weeks into the final quarter, I will not burden the administrative staff in tabulating such material. These partial grades are immaterial in determining the recipient of the Academic Excellence Scholarship as per Board policy. Also, they are very incomplete and would not impact on the decision in naming a Valedictorian as per District procedure.

Blum then filed her mandamus petition. In response, the Board, through legal counsel, sent Blum's attorney a nine-page letter setting forth in detail its "specific reasons for denying disclosure to you of the requested records of per-class interim grades."

The circuit court, after hearing argument from both counsel, issued a memorandum decision concluding that the requested items were not public records because they were not kept by an "authority," and further, even if they were public records, they were exempted from disclosure by the confidentiality provisions of § 118.125, STATS.

ANALYSIS

a. Standard of Review

Generally, a circuit court's decision to grant or deny a petition for writ of mandamus will be upheld unless the court erroneously exercised its discretion. See State ex rel. Lewandowski v. Callaway, 118 Wis.2d 165, 171, 346 N.W.2d 457, 459-60 (1984). Where, as here, however, the issue is the application of the Open Records Law to undisputed facts, we review de novo the question of law presented. See Wisconsin State Journal v. University of Wisconsin-Platteville, 160 Wis.2d 31, 36, 465 N.W.2d 266, 268 (Ct.App.1990).

b. "Records" Kept by An "Authority"

Under § 19.32(2), STATS., a " '[r]ecord' means any material on which written ... information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority." An "authority" is defined as:

[A]ny of the following having custody of a record: a state or local office, elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order; a governmental or quasi-governmental corporation ... or a formally constituted subunit of any of the foregoing.

Section 19.32(1).

The circuit court based its decision to deny the writ on its conclusion that "[t]he interim marks recorded by a teacher are not kept by an authority under the statute ." The basis for this conclusion, however, is not clear because no evidentiary proceedings were conducted in the circuit court, nor did the Board file any affidavits detailing when, how, and by whom "interim grades" are created, maintained and used.

Blum argues that since an "authority," such as the Board, must act through its officers and employees, "[d]ocuments which otherwise fit the definition of 'records' are 'kept' by an authority whenever they are in the possession of an officer or employee who falls under the supervision of the 'authority.' " " We agree. A public body may not avoid the public access mandate of Chapter 19, STATS., "by delegating both [a] record's creation and custody to an agent." Journal/Sentinel, Inc. v. Shorewood Sch. Bd., 186 Wis.2d 443, 452-53, 521 N.W.2d 165, 169-70 (Ct.App.1994).

The Board asserts in its brief that the interim grades are not "given to the superintendent and are not kept by the School Board," and further that the Board "did not, does not, nor in the future intends to create or keep material and documentation defined as interim marks and grades which are created by individual teachers." The Board's counsel made similar assertions during argument in the circuit court. These assertions have no support in the record because, as noted, the Board presented no testimony or affidavits. Moreover, the assertions do not negate the Board's entitlement to require teachers to submit interim grades to the Board. Even if the interim grades are physically in the possession of teachers and not Board members, they are nonetheless within the "lawful possession or control" of the Board. See Hathaway v. Green Bay Sch. Dist., 116 Wis.2d 388, 393-94, 342 N.W.2d 682, 685 (1984); State ex rel. Youmans v. Owens, 28 Wis.2d 672, 678-80, 137 N.W.2d 470, 472-73 (1965).

Sections 19.32 to 19.37, STATS., are to be construed with a presumption in favor of "complete public access" to information regarding "the official acts of [government] officers and employes who represent them." (Emphasis added.) Section 19.31, STATS.; see Hathaway, 116 Wis.2d at 392, 342 N.W.2d at 684. While a factual showing might be made that the information requested in this case was excluded from the definition of "record" in § 19.32(2), STATS., the Board failed to produce any evidence that would overcome the strong presumption in favor of public access required by statute and case law. ³ See Fox v. Bock, 149 Wis.2d 403, 417, 438 N.W.2d 589, 595 (1989) (custodian must produce evidence and persuade fact-finder that "draft" exclusion applies). Thus, unless there exists: (1) a "clear statutory exception"; (2) a common law limitation; or (3) an overriding public interest in keeping the record confidential, the information sought must be disclosed. Hathaway, 116 Wis.2d at 397, 342 N.W.2d at 687.

c. Confidentiality of "Pupil Records"

Section 19.36(1), STATS., provides that "[a]ny 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)." The Board argues that the interim grades of the "other student" are pupil records exempted from disclosure by § 118.125(1)(c) and (d) and (2), STATS. ⁴ The circuit court concluded that "[d]isclosure of another student's marks to [Blum] is prohibited by Chapter 118," and we agree. ⁵

Blum's attempt to remove the information she requests from the confidentiality mandate of § 118.125, STATS., is strained at best. She asserts that since the "other student" is not named in her request, the interim grades requested do not "relate to an individual pupil," and thus they are not "pupil records" under § 118.125(1)(d). Her concession that anyone who knew the scholarship recipient's identity "could identify the 'other student,' " by itself defeats any plausibility her argument might have. Moreover, nothing in § 118.125 suggests that "pupil records" are exempted from the confidentiality requirement if released under a guise of anonymity.

Finally, it should be noted that if the interim grades were shown to be "notes or records maintained for personal use by a teacher," § 118.125(1)(d), STATS., would exclude them from the pupil records confidentiality mandate of the statute. But, as the trial court noted, if the interim grades qualified for this confidentiality exclusion, they would likely still be excluded from public disclosure by § 19.32(2), STATS. (" 'Record' does not include drafts, notes ... and like materials prepared for the originator's personal use."). As we previously explained, the record in this case is devoid of evidence that the interim grades qualify for either statutory exclusion. Thus, the grades are presumptively both a "record" for purposes of Chapter 19, STATS., and a "pupil record" for purposes of § 118.125, STATS.

We therefore conclude that the requested interim grades are pupil records exempted from disclosure under § 19.36(1), STATS., by the "clear statutory exception" set forth in § 118.125, STATS.

d. Specificity of Reasons for Denial

Blum claims that since the Board failed to specify any cognizable grounds when it denied access to the information requested, a writ of mandamus must issue even if the denial is justifiable....