Hathaway v. Joint School District No. 1 , 116 Wis. 2d 388 ( 1984 )

HEFFERNAN, C.J.

This is a review of a published decision of the court of appeals, dated December 7, 1982, which reversed a judgment of the circuit court for Brown county, Robert J. Parins, Circuit Judge, which denied Larry Hathaway’s petition for writ of mandamus to compel the Green Bay Board of Education of Joint School District No. 1 to permit him access to a computer-generated list of the names and addresses of parents of pupils enrolled in the school district.¹ We affirm the court of appeals and direct that the cause be remanded to the circuit court with directions to issue a writ of mandamus to compel the Green Bay Board of Education to make available for inspection the list of parents’ names and addresses.

On June 4, 1981, Hathaway requested access to a computer-generated list of the names and addresses of all the parents of school children in the Green Bay school district. Hathaway, as executive director of the Green Bay Education Association (Association), requested the list so that the Association could contact the children’s parents in regard to its position on matters being discussed in the collective bargaining agreement between it and the Joint School District of Green Bay. The Association is the certified collective bargaining representative for the professional teachers employed by the Joint School District of Green Bay (School District), one of the respondents.

The computer-generated list, requested by Hathaway, consists of the names and addresses of all parents who have one or more children in the Green Bay public school district, created by the School District for its use in mailing information to the parents of the school system’s students. Through the means of a computer, the list of names is transferred onto mailing-address labels, which are then individually placed on whatever mailing the School District desires to reach the attention of the parents.

The School District, through its attorneys, on July 15, 1981, denied Hathaway’s request for the list, stating:

“[T]he District takes the position that the parent name labels to which you refer do not constitute public records as defined by Wisconsin law.”

Hathaway, on August 24, 1981, filed a petition for writ of mandamus asking the circuit court to compel the School District to provide access to the list of parents’ names and addresses. In the School District’s return to petition for writ of mandamus, it reiterated its position that the list “is not a public record within the meaning of sec. 19.21 of the Wisconsin Statutes and is therefore not available . . . .”

A hearing on the petition for writ of mandamus was held on November 6, 1981, before Circuit Judge Robert J. Parins of Brown county. On that date, the circuit court noted that the School District’s position was predicated upon a reading of the pupil record statute, sec. 118.125, Stats., which prohibits the disclosure of pupil records. The court acknowledged that a pupil record may not include director information concerning parents. It noted, however, that the list of names and addresses was gleaned from the records maintained by the School District for the individual pupil. Consequently, the list of parents’ names and addresses constituted a pupil record within the purview of sec. 118.125 (1) and (2). The circuit court further recognized that the purpose of both the state and corollary federal statute, 20 U.S.C. sec. 1232g (Supp. 1976), is to safeguard the privacy of the student. It was satisfied that disclosure of the parents’ names and addresses, derived from the pupil records, defeated the purpose of the legislation. The circuit court denied Hathaway’s petition for writ of mandamus to order the School District to provide him access to the list.

The basis upon which the court of appeals reversed the circuit court is that the plain language of sec. 118.125, Stats., demonstrates the legislature’s intent to protect certain personal information about pupils, nothing of which is correlated with the pupil’s parents’ names and addresses. It stated, “The mere fact that the information is gleaned from a pupil record does not make it a pupil record.” 110 Wis. 2d at 255.

An analysis of the public records statute, sec. 19.21, Stats. (1979-80), as well as the pupil records statute, sec. 118.125 (1) and (2), 1979-80, leads us to conclude that sec. 118.125 does not create an exception to sec. 19.21 which includes a list of parents’ names and addresses. Public policy and public interest favor the public’s right to inspect public records. Without an exception based upon statute, common law, or an overriding public interest in nondisclosure, there is a presumption that the public has the right to inspect public records. The mere fact that information is gleaned from a pupil record does not make a public record a pupil record to which confidentiality is afforded. Accordingly, we affirm the court of appeals.

It is conceded by the litigants before this court that the list of names and addresses of parents of children in the Green Bay School District constitutes a public record within the purview of sec. 19.21, Stats, 1979-80. Section 19.21 (1) provides that:

“Custody and delivery of official property and records. (1) Each and every officer of the state, or of any county, town, city, village, school district, or other municipality or district, is the legal custodian of and shall safely keep and preserve all property and things received from his predecessor or other persons and required by law to be filed, deposited, or kept in his office, or which are in the lawful possession or control of himself or his deputies, or to the possession or control of which he or they may be lawfully entitled, as such officers.”

This statute, which governs the examination or inspection of public records, was created by eh. 178, Laws of 1917, and was formerly numbered 18.01. Prior to that time statutes authorized inspection in certain circumstances. Otherwise, the public’s right to inspection of public records was governed by the common law. International Union v. Gooding, 251 Wis. 362, 371, 29 N.W. 2d 730 (1947) ; State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470, 139 N.W.2d 241 (1965) ; Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979).

In Gooding, supra, this court deemed that sec. 18.01, Stats., currently sec. 19.21 (1), dealt with three specific types of papers that must be kept by an office and delivered to a successor in office. Those three types of papers are:

“(1) Such books, papers, records, etc., as are required by law to be filed, deposited, or kept in his office; (2) books, papers, etc., in his possession as such officer; (3) books, papers, etc., to the possession of which he is entitled as such officer.” Id. at 369.

The term, “public record,” included not only those documents specifically required to be filed by the custodian of records, but all written papers made by an officer within his authority. Id. at 371; Youmans, supra. Thus, sec. 19.21 controls reports “required by law,” as well as those “which are in the lawful possession or control” of the school district. These reports are denominated public records.

The list of names and addresses of parents who have children in the Green Bay School District is maintained, used, and updated by the School District for the purpose of communicating directly with the parents of its students regarding issues and concerns. The list of parents’ names and addresses is generated by a computer on address labels which are in the care and custody of the School District. It is apparent that the list was not maintained by the School District because it was required to do so by law. Clearly, the list was in the possession of the School District in its capacity as a school district, and as a school district it was entitled to the list. Thus, the list was in the “lawful possession and control” of the School District. We conclude, therefore, as did the parties, that the list in question is a public record as contemplated by sec. 19.21 (1), Stats. 1979-80.

The general rule is that any person may inspect a public record. The fact that the list is a public record within the purview of sec. 19.21 (1), Stats. 1979-80, and a request for its inspection was properly made, does not mean that the list must be produced for inspection. Section 19.21 (2), 1979-80, provides:

“ (2) Except as expressly provided otherwise, any person may with proper care, during office hours and subject to such orders or regulations as the custodian thereof prescribes, examine or copy any of the property or things mentioned in sub. (1). Any person may, at his or her own expense and under such reasonable regulations as the custodian prescribes, copy or duplicate any materials, including but not limited to blueprints, slides, photographs and drawings. Duplication of university expansion materials may be performed away from the office of the custodian if necessary. Computer programs, as defined in s. 16.97 (4) (c), are not subject to examination under this subsection, but the data stored in the memory of a computer is subject to the right of examination and copying.”²

On its face, because the list is a public record, it is subject to inspection by Hathaway unless expressly provided otherwise. However, this court has not read this subsection literally. Newspapers, Inc. v. Breier, 89 Wis. 2d at 426. This section has been interpreted as stating that one manner in which the public’s right to inspect public documents may be limited is by a statutory provision which embodies an exception to sec. 19.21 (1), Stats. (1979-80).

In Gooding, supra, we interpreted the section as a pronouncement of the common law, subject to the limitations on the inspection of records which existed at common law. We relied on the revisor’s notes to the subsection which state that this “is believed to give expression to the general implied right of the public to consult public records.” Laws of 1917, ch. 178, Bill No. 133, S. Thus, we declared:

“While it is possible to contend that the words are so clear as not to be subject to construction we are of the view that the common-law right of the public to examine records and papers in the hands of an officer has not been extended.

_ “We shall not go into the scope of the common-law right exhaustively or attempt to document our observations upon it. It is enough to say that there are numerous limitations under the common law upon the right of the public to examine papers that are in the hands of an officer as such officer.” 251 Wis. at 372.

Thus, the public’s right to inspect public records is not only subject to statutory provisions which expressly provide otherwise but is also subject to the limitations which existed under common law.

In Youmans, supra, we were called upon to determine whether a writ of mandamus should issue to compel Owens, the mayor of the City of Waukesha, to permit Youmans to examine certain papers in the custody of the mayor. We adopted a statement of the common-law right of inspection of public records made by the Vermont court which stated:

“ ‘We think it may be safely said that at common law, when not detrimental to the public interest, the right to inspect public records and public documents exists with all persons who have a sufficient interest in the subject-matter thereof to answer the requirements of the law governing that question.’ ” 28 Wis. 2d at 681, citing Clement v. Graham, 78 Vt. 290, 315, 63 A. 146 (1906).

We concluded that:

“[Tjhere may be situations where the harm done to the public interest may outweigh the right of a member of the public to have access to particular public records or documents.” Youmans, 28 Wis. 2d at 681.

After we outlined the procedure which must be followed to arrive at such a determination, we said that it is incumbent upon the custodian of the public record who refused the demand of inspection to “state specifically the reasons for this refusal.” Id. at 682. We did recognize in Youmans that public policy favors the right of inspection and it is only in the exceptional case that inspection should be denied. Thus, the third exception to the public’s right to inspect public documents is where the public interest in keeping a public record confidential outweighs the public’s right to have access to the documents.

As evidenced by the foregoing discussion, the public’s right to inspect documents is not absolute. Gooding, supra; Yowmans, supra; Beckon v. Emery, 36 Wis. 2d 510, 518, 153 N.W.2d 501 (1967) ; Newspapers, Inc. v. Breier, supra. We have concluded, however, where statutes, common law, or court decisions have not limited the public’s right to examine records, “presumptively public records and documents must be open for inspection.” Newspapers, Inc. v. Breier, 89 Wis. 2d at 426. In Beckon, supra, 36 Wis. 2d at 516, we stated that the “public policy, and hence the public interest, favors the right of inspection of documents and public records.” See also, State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 196, 257 N.W.2d 877 (1977). There exists the legislative presumption that “where a public record is involved, the denial of inspection is contrary to the public policy and the public interest.” Newspapers, Inc. v. Breier, 89 Wis. 2d at 426-27. Thus, the 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.

Section 19.21, Stats., in light of prior cases, must be broadly construed to favor disclosure. Exceptions 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.

Having set forth the exceptions to the public’s right to inspect documents, we now analyze the School District’s position that the list, a public record, should not be disclosed to Hathaway. The School District maintains that there is an express statutory provision which limits the public’s right of full access to public records. It relies on sec. 118.125, Stats. 1979-80, the pupil records statute, to support its contention. Section 118.125 provides as follows :

“118.125 Pupil records. (1) Definitions. In this section:

“(a) ‘Pupil records’ means all records relating to individual pupils maintained by an elementary or high school but does not include notes or records maintained for personal use by a teacher or other person who is required by the department under s. 115.28 (7) to hold a certificate, license or permit if such records and notes are not available to others nor does it include records necessary for, and available only to persons involved in, the psychological treatment of a pupil.

“(b) ‘Behavioral records’ means those pupil records which include psychological tests, personality evaluations, records of conversations, any written statement relating specifically to an individual pupil’s behavior, tests relating specifically to achievement or measurement of ability, the pupil’s physical health records and any other pupil records which are not progress records.

“(c) ‘Progress records’ means those pupil records which include the pupil’s grades, a statement of the courses the pupil has taken, the pupil’s attendance record and records of the pupil’s school extracurricular activities.

“(2) Confidentiality. All pupil records maintained by a public school shall be confidential . . .”³

The School District argues that, because pupil records are defined as “all records relating to individual pupils,” it includes the list of parental names and addresses of students in the School District. It is the School District’s conclusion that, because the list is a pupil record, sec. 118.125 denies the third party’s right to see or use the list which presumably is derived from individual pupil records.

Thus, the issue we address is whether the pupil record statute, sec. 118.125, Stats. 1979-80, encompasses a list of parents’ names and addresses which creates an exception to the public records statute, sec. 19.21, 1979-80, such that Hathaway does not have the right to inspect the list.

Initially, we note that not all records concerning pupils are to be confidential. Only those records that fall within the express language which defines “pupil records” are afforded confidentiality. The language of sec. 118.125 (1) (a), Stats., requires that there be confidentiality only for records “relating to individual pupils.” It is then clear that these records relating to individual pupils, generally listed as “behavioral records” and “progress records,” and the specific items subsumed within each, are pupil records not subject to production. Section 118.125 (1) (b) and (c). Thus, exceptions to the public records act, sec. 19.21, are specifically, expressly set forth in sec. 118.125.

Our next step is to determine whether the list of parents’ names and addresses, generated by a computer, and used by the School District for the mailing of information to parents of its students regarding its concerns, is a pupil record within the contemplation of sec. 118.125. Section 118.125 (1) (a) defines a pupil record as one “relating to individual pupils.” (Emphasis supplied.) Here, the public record, the parent name-address list, does not relate to students at all, much less individual students. There is no identification of an individual student or correlation of an individual student with a particular parent or address. The list is purely what it purports to be, one which contains names of parents who have at least one child attending school in the district. In fact, the list does not indicate how many children the parents have in school, because their names appear on the list only once, regardless of how many offspring might be in the School District. The list does not relate to individual pupils as required by sec. 118.125 (1) (a), and we hold it is not a pupil record.

Clearly, the public record in question, the list, does not come within the purview of behavioral records, sec. 118.125 (1) (b), because not only does it again not relate to an individual pupil, it also does not contain any of the information which could be termed as behavioral. Just as clearly, the list does not fall within the contemplation of sec. 118.125 (1) (c), because it does not include information pertinent to a pupil’s grades, courses, attendance, or extracurricular activities.

We agree that sec. 118.125, Stats., the pupil record statute, sets forth exceptions to the general rule that the public has the right to inspect public records under sec. 19.21. However, the public record in question, the list of parents’ names and addresses, is simply not included within the operation of the pupil record statute.⁴ The list is not related to individual pupils, is not a behavioral record, and is not a progress record. We conclude, therefore, that the public record before this court, the list of parents’ names and addresses, is not a pupil record. Thus, sec. 118.125 (1) does not create an exception to sec. 19.21 which includes a list of parents of pupils and the parents’ addresses.

The School District also takes exception to the court of appeals’ application of the doctrine of expressio unius est exelusio alterius, because it contends the definition of “pupil records” does not in any manner list or enumerate items in its purview. This doctrine, of express mention and implied exclusion, was recognized by this court in State ex rel. West Allis v. Milwaukee L., H. & T. Co., 166 Wis. 178, 182, 164 N.W. 837 (1917), in which we stated:

“ ‘ It is based upon the rules of logic and the natural workings of the human mind. But it is not to be taken as establishing a Procrustean standard to which all statutory language must be made to conform. On the contrary, it is useful only as a guide in determining the probable intention of the legislature, and if it should be clearly apparent, in any particular case, that the legislature did not in fact intend that its express mention of one thing should operate as an exclusion of all others, then the maxim must give way.’ ” Citing Black on the Interpretation of Laws (2d ed.) 219; see also, Columbia Hospital Asso. v. Milwaukee, 35 Wis. 2d 660, 669, 151 N.W.2d 750 (1967); Gottlieb v. Milwaukee, 90 Wis. 2d 86, 95, 279 N.W.2d 479 (1979).

In Columbia Hospital, supra, we stated that:

“Factually, there should be some evidence the legislature intended its application lest it prevail as a rule of construction despite the reason for and the spirit of the enactment.” 35 Wis. 2d at 669.

We need not make the determination of whether the legislature in sec. 118.125, Stats., intended that an item not specifically mentioned be excluded from the definition of a pupil record, because the statute expressly provides that pupil records means “all records relating to individual pupils maintained by a . . . school.” (Emphasis supplied.) We have concluded that the list of parents’ names and addresses in question is not a pupil record, because it does not relate to an individual pupil or to pupils at all. The list concerns parents of pupils, with no correlation made between pupils and parents. By no stretch of the imagination can the list be characterized as a behavioral or progress record regardless of the enumerations contained within subsections (b) and (c) of sec. 118.125(1). We do not rely on the doctrine of expressio unitis esi exclusio alterius to hold that the list is not a pupil record. Thus, the question of whether the doctrine should be applied when construing sec. 118.125 is not properly before this court.

Neither party has advised the court, nor are we aware, of any limitation which existed under common law which would act now to bar Hathaway’s right to inspect the public record he requested from the School District. Thus, under the common law, Hathaway has the right to inspect the list of parents’ names and addresses.

Finally, as previously noted, this court has recognized that there may exist a situation where the harm done to the public interest by permitting inspection may outweigh the public’s right to have access to the public record. Youmans, supra; Beckon, supra; Newspapers, Inc. v. Breier, supra. In order to implement the presumption that the denial of inspection of a public record is contrary to the public policy and the public interest, we have set out legal standards and procedures to which a custodian of public documents must comply when a member of the public requests public documents.

When a request for inspection of the public document is made by a member of the public, the custodian of the document must “weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection.” Newspapers, Inc. v. Breier, 89 Wis. 2d at 427; State ex rel. Journal Co. v. County Court, 43 Wis. 2d 297, 305, 168 N.W.2d 836 (1969) ; Beckon, 36 Wis. 2d at 516; Youmans, 28 Wis. 2d at 682. Should the custodian refuse the request, he must “state specifically the reasons for this refusal,” whose sufficiency is subject to scrutiny by the trial court in the event a court action ensues. Youmans, 28 Wis. 2d at 682-83; State ex rel. Journal Co. v. County Court, 43 Wis 2d at 305; Newspapers, Inc. v. Breier, 89 Wis. 2d at 427; State ex rel. Bilder v. Delavan Tp., 112 Wis. 2d 539, 553, 334 N.W.2d 252 (1983). The court must be satisfied that “the public-policy presumption in favor of disclosure is outweighed by even more important public-policy considerations.” Newspapers, Inc. v. Breier, 89 Wis. 2d at 427.

Hathaway requested, in his letter dated June 4, 1981, that he “be permitted to examine and copy the names and addresses of parents of children in the District. The District maintains such parental names on address label.” On July 15, 1981, the School District through its attorney stated that “the District takes the position that the parent names labels to which you refer do not constitute public records as defined by Wisconsin law. Therefore, your request for examination and copying of such address labels is denied.” Again, in its return to petition for writ of mandamus, the School District stated that the list was not a public record and was, therefore, not available to Hathaway. The custodian of the list of parents’ names and addresses, the School District, failed to state with specificity its reasons for withholding the public record. This makes it impossible for this court to make the contemplated review to determine whether the public policy in favor of disclosure is outweighed by even more important public-policy considerations. Obviously, plausible and perhaps valid reasons for withholding the list could have been specified by the School District. However, no reason was given by the School District for its refusal. This court has previously stated that:

“It is not the trial court’s or this court’s role to hypothesize reasons or to consider reasons for not allowing inspection which were not asserted by the custodian. If the custodian gives no reasons or gives insufficient reasons for withholding a public record, a writ of mandamus compelling the production of the records must issue. Beckon, supra at 518, states, ‘[tjhere is an absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary.’ (Emphasis supplied.)” Newspapers, Inc. v. Breier, 89 Wis. 2d at 427.

We thus conclude that, where a request for a public record is made and no statutory exception exists, no limitations under common law exist, and no specifically stated sufficient reasons to the contrary are presented by the custodian, a writ of mandamus must issue compelling production of the requested public record.

By the Court. — The decision of the court of appeals is affirmed, and the cause is remanded to the circuit court for the issuance of the writ of mandamus compelling the respondent, School District, to produce for inspection purposes the list of parents’ names maintained by it on address labels as requested by the petitioner, Hathaway.

1 Hathaway v. Joint School Dist. No. 1, 110 Wis. 2d 264, 329 N.W.2d 217 (Ct. App. 1982).

2 Section 19.21(2), Stats. 1979-80, was repealed by Laws of 1981, ch. 335, sec. 9, effective January 1, 1983. Former sec. 19.21 (2) has been replaced by secs. 19.35 and 19.36(1), 1981-82.

3 By the Laws of 1981, ch. 273, sec. 1, sec. 118.126(1) (d) was amended to provide:

“(d) ‘Directory data’ means those pupil records which include the pupil’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, photographs, degrees and awards received and the name of the school most recently previously attended by the pupil.”

4 It is not necessary for us to decide whether the list in question is included within the definition of “directory data,” sec. 118.125 (1) (d), Stats. 1981-82, because the general rule is that statutes are to be construed as relating to future and not to past acts. The exception is when a statute is procedural or remedial, rather than substantive, in which case the statute is generally given retroactive effect. Gutter v. Seamandel, 103 Wis. 2d 1, 17, 308 N.W.2d 403 (1981). The amendment which added “directory data” to the meaning of pupil record is neither procedural nor remedial in nature. Section 118.125(1) (d) will not be given retroactive effect.