J. Marshall Osborn v. Board of Regents of the University of Wisconsin System
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2002 WI 83 SUPREME COURT CASE NO.: OF WISCONSIN 00-2861 COMPLETE TITLE: J. Marshall Osborn and Center for Equal Opportunity, Plaintiffs-Respondents-Cross-AppellantsPetitioners, v. Board of Regents of the University of Wisconsin System, Defendant-Appellant-Cross-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS 2001 WI App 209 Reported at: 247 Wis. 2d 957, 634 N.W.2d 563 (Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 30, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Dane Stuart A. Schwartz JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ABRAHAMSON, C.J., did not participate. July 2, 2002 ATTORNEYS: 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. 2 2002 WI 83 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-2861 (L.C. No. 99-CV-2958) STATE OF WISCONSIN : IN SUPREME COURT J. Marshall Osborn and Center for Equal Opportunity, Plaintiffs-Respondents-CrossAppellants-Petitioners, FILED JUL 2, 2002 v. Board of Regents of the University of Wisconsin System, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant-CrossRespondent. REVIEW of a decision of the Court of Appeals. ¶1 N. PATRICK CROOKS, J. Reversed. In this case, we review a court of appeals' decision, Osborn v. Board of Regents of the University of Wis. 2d 957, 634 Wisconsin System, N.W.2d 563, 2001 regarding WI whether App 209, the 247 Board of Regents of the University of Wisconsin System (hereinafter the University) must provide documents in response to open records requests by Opportunity J. Marshall (hereinafter Osborn referred and to the Center collectively for as Equal Osborn). In 1998 and 1999, Osborn made several open record requests to No. 00-2861 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 records, but responded largely by producing denied Osborn's some of the requests information in student application records. requested relating to In an effort to compel the University to provide the requested records, Osborn filed a mandamus action. The circuit court concluded that the University to was required 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 affirmed in part and reversed in part. concluded that all records the court of appeals The court of appeals 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. 1 Unless otherwise noted, subsequent references to 20 U.S.C. § 1232g are to the 2000 version. 2 No. ¶3 We 00-2861 On review, we reverse the court of appeals' decision. conclude that identifiable Osborn information; is not therefore, requesting FERPA does personally 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 conclude that information requested based subject records on to the confidential. statutory disclosure and Further, requirement delete to we provide information not subject to disclosure as stated in Wis. Stat. § 19.36(6) (19992000),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. Osborn first On April requested 2, 1998, public 2 in nearly records identical from several letters, of the All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. 3 No. 00-2861 University's campuses3 relating to applications for undergraduate admission for the enumerated 27 public years 1993 records through requests 1997. seeking The letter 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 to the provided On June 15, 1998, in response to the original requests University's several undergraduate hundred pages of campuses, documents requests numbered 1 through 5 and 16 through 27. the in University response to 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 3 Specifically, Osborn sent the open records request to the following: UW LaCrosse, UW Madison, UW Milwaukee, UW Oshkosh, UW Parkside, UW Platteville, UW River Falls, UW Stevens Point, UW Stout, UW Superior, UW Whitewater, and UW Law School Madison. 4 Osborn's records request to the Law School enumerated 28 requests and the request to the Medical School enumerated 31 requests. Again, the open records requests focused on student applications, including, for example, information regarding race, LSAT (Law School Admissions Test) or MCAT (Medical College Admissions Test) scores, undergraduate class rank, undergraduate grade point average, and socio-economic background. The requests to the Law School and Medical School were subsequently clarified by letters dated January 3, 2000. 5 Osborn's requests numbered following information: 6. 6 through 15 asked The math and verbal scores achieved on Scholastic Aptitude Test ("SAT") and 4 for the the the No. 00-2861 composite scores achieved on the American College Testing Assessment ("ACT") by each American Indian, Asian, black, Hispanic, and white, male freshman. 7. The math and verbal scores achieved on the SAT, and the composite scores achieved on the ACT, by each American Indian, Asian, black, Hispanic, and white, male applicant who was denied admission. 8. The math and verbal scores achieved on the SAT, and the composite scores achieved on the ACT, by each American Indian, Asian, black, Hispanic, and white, male applicant who was accepted, but who did not enroll. 9. The math and verbal scores achieved on the SAT, and the composite scores achieved on the ACT, by each American Indian, Asian, black, Hispanic, and white, female freshman. 10. The math and verbal scores achieved on the SAT, and the composite scores achieved on the ACT, by each American Indian, Asian, black, Hispanic, and white, female applicant who was denied admission. 11. The math and verbal scores achieved on the SAT, and the composite scores achieved on the ACT, by each American Indian, Asian, black, Hispanic, and white, female applicant who was accepted, but who did not enroll. 12. The high-school rank for each American Indian, Asian, black, Hispanic, and white, male freshman, rejected male applicant, and accepted male applicant who did not enroll. 13. The high-school rank for each American Indian, Asian, black, Hispanic, and white, female freshman, rejected female applicant, and accepted female applicant who did not enroll. 14. The high-school grade point average ("GPA") for each American Indian, Asian, black, Hispanic, and white, male freshman, rejected male applicant, and accepted male applicant who did not enroll. 5 No. 00-2861 test scores, grade point averages, and class rank by race and sex, the University personally identifiable disclosure under disclosure is disclosure. FERPA, outweighed Moreover, information individual denied sought student by the requests, information and because by the the those education is the public University requests records claiming is and that such prohibited public interest interest claimed only that from in in non- that the maintained extracting in 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. 15. The GPA for each American Indian, Asian, black, Hispanic, and white, female freshman, rejected female applicant, and accepted female applicant who did not enroll. 6 No. ¶7 the 00-2861 In response to Osborn's requests to the Law School and 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 6 Osborn's requests to the Law School numbered 8 through 19 stated: 8. (a) Whether the applicant is male or female. (b) Whether the applicant was accepted and subsequently enrolled; was accepted but did not subsequently enroll; or was rejected or deferred. 9. Whether the applicant is resident or non-resident of the State. 10. Whether the applicant is American Indian, Asian, Non-Hispanic black, Hispanic, or Non-Hispanic white. 11. (a) The first-year law school grade average for the enrolled applicant. point (b) Whether the applicant remedial student. as (c) Whether the applicant was eligible to return to the law school for a second year of study or was placed on academic probation for the second year or any part thereof. is classified a 12. The geographical origin within the State of the applicant. 13. (a) The particular area of academic interest or undergraduate major of the applicant. (b) The extracurricular applicant. 7 activity of the No. 00-2861 14. The scores achieved on the Law School Scholastic Aptitude Test ("LSAT") by each applicant and dates taken. 15. The undergraduate rank for each applicant. 16. The undergraduate grade point average ("GPA") used by the Law School for each applicant. 17. If the Law School adjusts or weighs the GPA of any applicant to take into account: (a) the quality of the undergraduate institution and/or the quality of the undergraduate courses; (b) the professional-school level of undergraduate courses taken through any form of dual enrollment; (c) the most recent academic performance; (d) performance in specific law school preparatory course work; or (e) any other factor, then with respect to each such applicant -(i) The un-weighted, unadjusted GPA; (ii) The form and amount of the adjustment factor; and (iii)The basis for the form and amount of the adjustment factor. 18. The native language of the applicant, if other than English. 19. If the Law School weighed the socio-economic, racial, ethnic, or similar background of applicants to the first-year class as a factor in the admission process, please provide the records containing any discussion of how these factors are considered and any information which might thereby affect the admission of the applicant, including the family income for each applicant. Osborn's requests to the Medical School numbered 9 through 17, and 22, stated: 9. (a) Whether the applicant is male or female. 8 No. 00-2861 personally identifiable information from education records that (b) Whether the applicant was accepted and subsequently enrolled; was accepted but did not subsequently enroll; was rejected, or was deferred. 10. Whether the applicant is resident or non-resident of the state. 11. Whether the applicant is American Indian, Asian, black, Hispanic, or white. 12. (a) The first-year medical school grade average for the enrolled applicant. (b) The results of the United States Medical Licensing Examination Step 1, for the enrolled applicant. (c) Whether the applicant remedial student. is classified point as a 13. The geographical origin within the state of the applicant. 14. (a) The particular areas of undergraduate academic interest or major of the applicant. (b) The extracurricular applicant. achieved the MCAT of the by each 15. The scores applicant. 16. The undergraduate rank for each applicant. 17. The undergraduate GPA used by the Medical School for each applicant. 22. If the Medical School weighed the socio-economic, or other background of applicants to the firstyear class as a factor in the admission process, the records containing any information which might thereby affect the admission of the applicant, including the family income for each applicant. 9 on activity No. 00-2861 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 by filing a motion to dismiss. The University responded 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 7 Osborn originally filed the complaint on December 17, 1999, but later filed an amended complaint on April 4, 2000. The amended complaint substituted the Board of Regents as defendant, removing the previously named defendant, Elizabeth Rindskopf Parker, General Counsel of the University of Wisconsin System, and added allegations. 8 Osborn filed the writ of mandamus as provided Wis. Stat. § 19.37(1)(a), which states in relevant part: in If an authority withholds a record or part of a record or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may pursue either, or both, of the alternatives under pars. (a) and (b). (a) The requester may bring an action for mandamus asking a court to order release of the record. 9 Wisconsin Stat. § 19.35(1) is the statutory section granting a requester the right to inspect and copy public records. "Except as otherwise provided by law, any requester has a right to inspect any record." Wis. Stat. § 19.35(1)(a). Moreover, "Except as otherwise provided by law, any requester has a right to inspect a record and to make or receive a copy of a record which appears in written form." Wis. Stat. § 19.35(1)(b). 10 No. denied the requests by concluding that prohibited from disclosure by FERPA. the 00-2861 records were In contrast, the court granted Osborn's request for records of applicants who had not enrolled at protected as the University education because records. such The records court also are not 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 a The University appealed and Osborn cross-appealed. published decision, the Court of affirmed in part and reversed in part. ¶25. Appeals, District In IV, Osborn, 2001 WI App 209, 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. ¶19. The court declined to address the Id. at impact of Wis. Stat. § 118.125 because the case was resolved under federal 11 No. law. Id. at ¶21. 00-2861 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 redacting personally identifiable information. that nothing in FERPA suggests that after The court held 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 information University's public Osborn burden policy requested. to show favors He that disclosure indicated the that records it should disclosed and that it has failed to do so in this case. ¶30. of the is the not be Id. at Judge Dykman then rejected the majority opinion's broad definition of "student" and concluded that Congress intended a limited exception for the records of non-students. Finally, he disagreed with the majority Id. at ¶35. opinion's decision regarding the University's obligation to redact. Wis. Stat. § 19.36(6) requires the Board of Regents to separate information subject to disclosure from information not subject to disclosure, and to then disclose the former. I need not consider whether Osborn is entitled to what he describes as "personally identifiable information" because he does not seek that information. Id. at ¶37. 12 No. ¶11 00-2861 We subsequently granted Osborn's petition for review. II ¶12 In this case we examine the custodian's reasons for denying the open records requests and determine the scope of protection from disclosure for education records under FERPA and the open records interpretation and law, application undisputed facts present novo, benefiting, court and the Wis. Stat. § 19.35. questions however, court of of from the of the open law records that analyses appeals. Nichols Statutory of v. we law to review de the circuit Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428 (1996); Rathie v. N.E. Wis. Tech. Inst., 142 Wis. 2d 685, 687, 419 N.W.2d 296 (Ct. App. 1987). ¶13 In Wisconsin, we have a presumption of open access to public records, which is reflected in both our statutes and our case law. [I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. . . . The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied. Wis. Stat. § 19.31; ¶15, ___ presumption public); see also Linzmeyer v. Forcey, 2002 WI 84, Wis. 2d ___, that Mayfair all ___ public N.W.2d ___ records Chrysler-Plymouth should v. (recognizing be open to Baldarotta the the 162 Wis. 2d 142, 155, 469 N.W.2d 638 (1991) (discussing presumption of open access to public records as having been long recognized 13 No. in Wisconsin); Wis. 2d 388, public Hathaway 392, interest 342 v. Green N.W.2d 682 favor the Bay (1984) public's Sch. Dist., ("Public right to 00-2861 policy inspect 116 and public records."); Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 426-427, 279 N.W.2d 179 (1979) (recognizing the legislative presumption that "where inspection interest"). a is public contrary record is to public the involved, the policy denial and the of public The open records law, Wis. Stat. § 19.35, provides a requester with the procedure to exercise the right to inspect a public record and/or to make or receive a copy of a public record that appears in written form. Wis. Stat. § 19.35(1)(a) and (b). ¶14 The right to inspect public records, however, is not absolute. request In certain circumstances, a custodian should deny a to inspect public records. Access should be denied where the legislature or the court has predetermined that the public interest in keeping a public record confidential outweighs the public's right to have access to the documents. "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." ¶15 should Hathaway, 116 Wis. 2d at 397. After receiving an open records request, a custodian turn to the statutes procedural standards to and to determine requested public records is proper. 14 this whether court's established disclosure of the First, the custodian must No. 00-2861 determine whether any of the exceptions to open access apply, and then "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." 427. Breier, 89 Wis. 2d at If the custodian decides that the open records request should be denied, then the custodian must state the specific policy reasons relied on to make that determination. 162 Wis. 2d at 157; Breier, Wis. Stat. § 19.35(4). 89 Wis. 2d at Further, 427; pursuant to Mayfair, see also Wis. Stat. § 19.35(4)(b), if the custodian "denies a written request in whole or in part, the requester shall receive from the authority a written statement of the reasons for denying the written request." ¶16 In reviewing a mandamus action seeking to compel the custodian to disclose the requested public records, we first examine the sufficiency of the custodian's stated reasons for denying the request. question reasons is whether Rathie, 142 Wis. 2d at 687. the custodian for denying the open Wis. 2d at 158. records stated The threshold legally request. specific Mayfair, 162 It is not this court's role to hypothesize or consider reasons to deny the request that were not asserted by the custodian. insufficient Breier, 89 Wis. 2d 417. reasons for denying If the custodian states access, mandamus compelling disclosure must issue. then the writ of Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis. 2d 480, 486, 373 N.W.2d 459 (Ct. App. 1985). 15 No. ¶17 Here, the University denied Osborn's 00-2861 open records requests by stating: (1) disclosure of the requested information would violate FERPA, (2) the public interest in the disclosure of the requested records is outweighed by the public interest in non-disclosure, and (3) complying with the request would essentially require the University to create a new record, which is not required under the open records law. The parties here do not dispute that the University's reasons for denying Osborn's requests satisfy the custodian's duty to state specifically the policy reasons for denial. See Chvala v. Bubolz, 204 Wis. 2d 82, 87-88, 552 N.W.2d 892 (Ct. App. 1996) (concluding that there are some statutes, including FERPA, "that leave no room for explanation records case"). or discretion when applied to an open We conclude that the University stated legally specific reasons for denying Osborn's requests, thus, we review each of the University's stated reasons in turn. III ¶18 the We begin by examining the scope of FERPA and whether University correctly denying Osborn's requests. relied on the Act as a basis for FERPA conditions the availability of funds to educational agencies and institutions based on their policies and practices regarding open access to education records. Specifically, the Act provides in relevant part: No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information . . . ) of students without the written 16 No. 00-2861 consent of their parents to any individual, agency, or organization. . . . 20 U.S.C. § 1232g(b)(1) (emphasis added).10 Before discussing the applicability of FERPA to the open records requests at issue here, we note that, on its face, the Act does not prohibit disclosure of the records Osborn has requested from the University. In fact, FERPA does not prohibit disclosure of any documents. Rather, FERPA operates to deprive an educational agency or institution of funds personally identifiable information are disclosed without consent. if "education contained records (or therein . . . )" 20 U.S.C. § 1232g(b)(1). We do not question the importance of, and the University's interest in, receiving according to funding; what therefore, records or we interpret information the FERPA here University can disclose without jeopardizing its eligibility for funding. ¶19 The dispute here is to what extent, if any, FERPA protects from disclosure the records Osborn has requested from the University. We note that this issue, the scope of protection for records under FERPA, is one of first impression in Wisconsin. ¶20 In denying Osborn's open University relied on FERPA, claiming records requests, the that the requested records are "education records" which, under FERPA and Wisconsin's open 10 The United States Supreme Court recently addressed FERPA and held that the Act's nondisclosure provisions fail to confer individual enforceable rights under 42 U.S.C. § 1983. Gonzaga University v. Doe, 536 U.S. ___, 122 S. Ct. 628 (June 20, 2002). We have reviewed the Court's decision and it has no effect on our ruling here. 17 No. 00-2861 records law, are excepted from the general rule of inspection. The University interprets contained in education requested here. FERPA to records, Specifically, protect all the including the information information University argues that student records include records of applicants who subsequently attend the University, as well as records of applicants who do not matriculate. The University seems to contend that all student records contain only personal information, and not any information that is subject to disclosure because of an open records request. requests are enrollment, According to the University, because Osborn's for on information their face, regarding the each requests applicant are for for personally identifiable information protected from disclosure by FERPA. ¶21 In contrast, Osborn argues that FERPA prohibits disclosure of information contained in education records in only two situations, neither of which is present here. First, he argues that FERPA prohibits disclosure of an entire education record. Second, FERPA prohibits disclosure of identifiable information in an education record. that because the open records requests here do personally Osborn claims not ask for entire education records, nor do the requests ask for personally identifiable University information, from complying the with Act does his open not prohibit records the requests. Specifically, Osborn looks to the language of FERPA and argues that the parenthetical portion of the Act, "(or personally identifiable information contained therein other than directory information . . . )," demonstrates that some of the information 18 No. in an education record may be released. purpose of the parenthetical is to 00-2861 Osborn claims that the explain to educational agencies and institutions that the information they release must not be capable of identifying a particular student. According to Osborn, therefore, FERPA does not prohibit the release of all information in an education record and, furthermore, does not prohibit the release of the information requested here. ¶22 We conclude, based on the plain language of FERPA, that the Act prohibits non-consensual disclosure of personally identifiable information contained within education records.11 The plain language of FERPA protects from disclosure "education records (or personally identifiable information therein other than directory information . . . )." § 1232g(b)(1). contained 20 U.S.C. Based on this unambiguous language, it is clear that FERPA protects the disclosure of education records. It is also clear, however, that FERPA does not prohibit disclosure of all information indicates that contained directory in such records. information, education record, is subject to release. notes, the parenthetical referring 11 to which The is Act part itself of an Furthermore, as Osborn personally identifiable We do not address Osborn's interpretation of FERPA as prohibiting disclosure of education records "in their entirety" because it is unnecessary to do so. We focus on the scope of FERPA regarding personally identifiable information because once personally identifiable information is deleted, by definition, a record is no longer an education record since it is no longer directly related to a student. See 20 U.S.C. 1232g(a)(4)(A) (defining education records in part as a records which "contain information directly related to a student"). 19 No. 00-2861 information would be meaningless if FERPA prohibited disclosure of all information in education records. When interpreting a statute, we attempt to give effect to every word, so as not to render any Physicians portion Ins. N.W.2d 893. the of Co., 2001 statute superfluous. WI ¶16, 86, 245 Landis Wis. 2d 1, v. 628 We, therefore, interpret FERPA by giving effect to parenthetical information. consensual the reference to personally identifiable Accordingly, we conclude that FERPA prohibits non- disclosure of personally identifiable information contained in education records. ¶23 In order to determine if the requested information is personally identifiable disclosure, we FERPA. look to and the subject regulations to protection adopted to from implement Specifically, 34 C.F.R. § 99.3 (2000) defines personally identifiable information as follows: Personally identifiable information includes, but is not limited to: (a) The student's name; (b) The name of the student's parent or other family member; (c) The address family; (d) A personal identifier, such as the student's social security number or student number; (e) A list of personal characteristics that would make the student's identity easily traceable; or (f) Other information that would make student's identity easily traceable. of the 20 student or student's the No. 00-2861 Based on this definition, we conclude that only if the open records request seeks information that would make a student's identity traceable, may a custodian rely on FERPA to deny the request on the basis that it seeks personally identifiable information. ¶24 While we base our interpretation of FERPA on the plain language of the Act itself, we note that our interpretation of FERPA here is consistent with Wisconsin's prior interpretation of FERPA in Rathie v. Institute, 142 Wis. 2d 685, Although Rathie did not Northeastern 419 Wisconsin N.W.2d 296 address, (Ct. directly, Technical App. the 1987).12 scope of protection under FERPA, we note that our interpretation of FERPA 12 Our interpretation of FERPA is also consistent with interpretations of the Act in other jurisdictions. See Tarka v. Franklin, 891 F.2d 102, 104 (5th Cir. 1989) ("A student's or parent's consent is required where personally identifiable information from the educational records of a student is to be disclosed."); Doe v. Knox County Bd. of Educ., 918 F. Supp. 181, 184 (E.D. Ky. 1996) (applying FERPA by focusing on whether the information disclosed was personally identifiable); Norwood v. Slammons, 788 F. Supp. 1020, 1026 (W.D. Ark. 1991) ("Before personally identifiable information from the education records of a student may be disclosed, the consent of the student or parent must be obtained."); Mattie T. v. Johnston, 74 F.R.D. 498, 501 (N.D. Miss. 1976) (holding that FERPA does not apply when a subpoena allows the custodian to delete or cover up personally identifiable information in the requested documents); Human Rights Auth. of the State of Ill. Guardianship & Advocacy Comm'n v. Miller, 464 N.E.2d 833, 836 (Ill. App. Ct. 1984) (comparing Illinois Student Records Act to FERPA as "affect[ing] only records containing personally identifiable information"); Kryston v. Bd. of Educ. of the E. Ramapo Cent. Sch. Dist., 77 A.D. 2d 896, 897 (N.Y. App. Div. 1980) (holding that release of "scrambled" test scores would not constitute disclosure of personally identifiable information under FERPA). 21 No. here is consistent with that opinion. appeals addressed request for social FERPA attendance security in and number, the In Rathie, the court of context grade forms, telephone 00-2861 of an open including number, class records the name, attendance record, and final grade of each student enrolled in courses at the Northeastern Wisconsin Technical Institute Northeastern Wisconsin Technical College (NWTC)). (NWTI) (now Based on the language and purpose of FERPA, the court held that the custodian of the requested attendance and grade records properly denied the open records request. ¶25 Id. at 695. The court first examined the language of FERPA itself, and also looked at regulations adopted to protect and enforce students' right to privacy, including the definition personally identifiable information in 34 C.F.R. § 99.3. 690-691. The court did not disclosure of all information interpret in FERPA education of Id. at as prohibiting records. To the contrary, the court relied on the same personally identifiable information distinction we rely on here. The Act does provide that certain personally identifiable information may be released without written consent under certain conditions. Specific categories of personally identifiable information may be designated as "directory information," for example . . . . Id. at 692. The court concluded, however, that NWTI had not designated categories of personally identifiable information as directory information, and that the requested information was personally identifiable information which is protected by FERPA. Id. at 691, 692. 22 No. ¶26 FERPA. Next, the court in Rathie examined the 00-2861 purpose of Looking to the congressional record, the court quoted the purpose of the Act as asserted by its sponsors. The purpose of the Act is two-fold to assure parents of students, and students themselves if they are over the age of 18 or attending an institution or postsecondary education, access to their education records and to protect such individuals' rights to privacy by limiting the transferability of their records without their consent. Id. at 693 (quoting 120 Cong. Rec. 39862 (Dec. 13, 1974) (Joint Statement in supplied)). "secured Explanation The by court the of Buckley/Pell noted that regulations the Amendment) privacy (emphasis protection adopted . . . allowing is the institution to release personally identifiable student records 'only upon written consent.'" Id. at 694 (quoting S. Rep. No. 93-1026, 93rd Cong., 2d Sess. 186, reprinted in 1974 U.S. Code Cong. & Admin. News 4250). Finally, the court concluded that because the requested information was personally identifiable, the public policy basis for nondisclosure outweighs the interest in disclosure. ¶27 Id. Our interpretation of FERPA here is consistent with Rathie and the stated purpose of the Act itself. Similar to Rathie, we conclude that non-consensual access to information in education records is not wholly forbidden. Rather, access is limited only to disclosure of information that is not personally identifiable. We agree personally identifiable that an information 23 institution contained in may an release education No. 00-2861 record, but only upon written consent, unless it is directory information. ¶28 We now turn to Osborn's open records apply our interpretation of FERPA here. Osborn's defined requests in 34 seek personally C.F.R. § 99.3. and We focus on whether identifiable Osborn requests is not information as requesting the student's name, the name of the student's parent or other family member, the address of the student or student's family, or a personal identifier number. We, therefore, must determine whether the requested information is a information that such list would as of the student's personal make the social characteristics student's security or identity other easily traceable. ¶29 The disputed open records requests here focus largely on test scores, class rank, grade point average, race, gender, ethnicity, and socio-economic background. At oral argument, Osborn's counsel clarified that at a minimum, Osborn needs the following information to accomplish stated research goals: scores, grade point average, race, gender, and test ethnicity. Furthermore, Osborn has maintained that the University should comply with information. FERPA by redacting all personally identifiable In fact, as early as June 22, 1998, Osborn wrote the University: [I]t was my expectation and intention in requesting this information that the various institutions would comply fully with the provisions of the Buckley Amendment, the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g, as amended, by redacting "private information." I did not explicitly specify 24 No. 00-2861 that personally identifiable information should be in all cases redacted because this is unquestionably required by that provision. . . . . In compliance with the Buckley Amendment, the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g, as amended, please redact all personally identifiable information. . . . ¶30 Based on the statements at oral requesting somewhat argument, personally minimal written requests and we conclude that identifiable information his Osborn is not The list of information. Osborn counsel's requests grade point average, test scores, race, gender, and ethnicity (if recorded) is not sufficient, by itself, to trace the identity of an applicant. situations Although we recognize that in a small number of the requested information could possibly create a list of characteristics that would make an individual personally identifiable, we conclude that under the circumstances here, the information is not personally identifiable. Specifically, we find high it significant that the name of the school or undergraduate institution is not included in Osborn's list of necessary information. excluded, we conclude With the that it name of becomes the institution significantly more difficult, if not impossible, to identify an individual based only on the redacting or undergraduate situation school data Osborn deleting the institution, where applies only to one one has requested. name the of For the University high no minority student of University's the 25 example, by school or longer from a faces a named high campuses and No. 00-2861 therefore, even though the student's name is not disclosed, the data could be personally identifiable. By complying with Osborn's requests and only disclosing the requested information, however, we conclude that the public records requests here do not seek personally identifiable information. ¶31 Furthermore, we find it significant that Osborn is asking the University to comply with FERPA and provide only the requested information that is not personally identifiable. As previously noted, at oral argument Osborn's counsel provided a list of minimal information needed to accomplish the desired research objectives. that to the Osborn's counsel also indicated, however, extent this requested information is personally identifiable, the University should state it as such and refuse disclosure. We conclude that Osborn's list of minimal necessary information is not a list of personal characteristics that would make a student's identity easily traceable. We do not intend, however, to deprive the University of a discretionary decision, in an individual case, to conclude that providing Osborn's list of minimal necessary information would personally identifiable characteristics. comply with FERPA and, in those few involve disclosure of The University should situations, refuse to disclose the information if it would indeed involve the release of personally identifiable information. We are satisfied that as long as the University complies with Osborn's requests and provides the somewhat minimal information necessary for Osborn's research, in all but a very few situations the disclosed data would be about the applicant, 26 but not traceable to the No. applicant's identity. Accordingly, we conclude 00-2861 that the University inappropriately relied on FERPA in denying Osborn's open records request, because FERPA does not prohibit disclosure of records where personally identifiable information is not included. ¶32 Finally, we note that because we conclude that Osborn is not requesting personally identifiable information, we do not reach the issue of whether application records of those persons who did not matriculate are education records protected under FERPA. It is unnecessary, here, to decide that question. Since we conclude that none of Osborn's open records requests seek personally identifiable information, and thus, do not violate FERPA, it is unnecessary to distinguish between requests relating to applicants who subsequently enrolled and requests relating to applicants who did not matriculate. IV ¶33 The University's second stated reason for denying Osborn's open records requests was based on public policy. University claimed that the requested information The "implicates the personal privacy and reputational interests of individual students and applications for admission." Accordingly, the University balanced the interests involved and concluded that "[t]he public interest in the disclosure of these records is outweighed by the public interest in nondisclosure." ¶34 law The University argues that Wisconsin's public records exempts application records of students from disclosure. According to the University, the records of applicants contain 27 No. only personal information, not information 00-2861 subject to disclosure, so none of the information Osborn requests from the application records is accessible under the open records law. The University argues Wis. Stat. § 118.12513 is here, by Wisconsin's analogy, equivalent to that FERPA and that by following the analysis in State ex rel. Blum v. Board of Education, 209 Wis. 2d 377, 385, 565 N.W.2d 140 (Ct. App. 1997), it is clear that the public policy reflected by § 118.125 13 We decline to address specifically the parties' arguments here regarding whether Wis. Stat. § 118.125 protects the requested documents from disclosure, because the University did not use this statute, originally, as a reason for denying access to the records. See Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979) (It is not the court's role to consider reasons for not allowing inspection that were not asserted by the custodian.). We, therefore, consider and address § 118.125 only in the context of the University's public policy argument. Wisconsin follows: Stat. § 118.125(1)(d) defines pupil records as "Pupil records" means all records relating to individual pupils maintained by a school but does not include notes or records maintained for personal use by a teacher or other person who is required by the state superintendent 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. With regard to the confidentiality of pupil records, § 118.125(2) states in relevant part: "All pupil records maintained by a public school shall be confidential . . . ." 28 No. 00-2861 provides an exception to the presumption of access to records under the open records law.14 ¶35 In Blum, the court of appeals concluded that an open records request by a student seeking interim grades for herself and another student, required disclosure of pupil records exempt from access under the open records law exception set forth in Wis. Stat. § 118.125. by the statutory Id. at 385. The court concluded that the grades were a "record" for the purposes of the open records law, but that they were also pupil records that must be kept confidential under § 118.125(2). Significantly, the court noted that the identity of the other student, even if not stated, would be easily identifiable. The court then stated, "nothing in § 118.125 suggests that 'pupil records' are exempted from the confidentiality requirement if released under a guise of anonymity." Id. at 384-385. The University argues that Blum, in combination with Rathie, which we discussed policies earlier, require that establishes the that application federal records and requested state here should not be released. ¶36 In contrast, Osborn and Amicus Curiae, The Reporters Committee for Freedom of the Press and Student Press Law Center 14 We note that Wis. Stat. § 118.125(2) addresses the confidentiality of "[a]ll pupil records maintained by a public school." For the purposes of that statute, public schools are defined in § 115.01(1) as "the elementary and high schools supported by public taxation." Accordingly, we emphasize that to the extent we examine § 118.125, we do so only in the context of public policy considerations. 29 No. 00-2861 (hereinafter collectively referred to as "Amicus"), argue that Wisconsin's public policy favors openness of records and that public access should be denied only in exceptional cases. In support of its position, Osborn cites the declaration of policy in the open Wisconsin unless records prefers there confidentiality. law, open is Wis. Stat. § 19.31, government an and also cites that accountability good this expressing a presumption of open access. ¶37 public exceptionally Osborn indicating reason court's for precedent See ¶13, supra. Applied here, Osborn and Amicus argue that there are important policy reasons for making the requested information available. public Disclosing data from student applications allows the to research and conduct studies to gauge the effectiveness and appropriateness of the University's admissions practices and policies. Specifically, Osborn and Amicus argue that open access to application records keeps the actions of public universities accountable. Furthermore, with regard to Wisconsin's public policy as applied in Blum, Osborn and Amicus argue that it does not apply anonymity" is not penetrable. here because the "guise of In Blum, the records of the two students would be clearly traceable to the students' identities. Here, however, identifiable. the requested According to information Osborn, is not therefore, personally there is no justification to prohibit disclosure of the requested records based on Blum. ¶38 Finally, Osborn and Amicus argue that when balancing the public policy interests here, we should conclude that the 30 No. presumption of openness prevails. Public policies 00-2861 favoring disclosure, including the presumption of openness, are to be weighed against the harm to the public interest in disclosing the requested information. Milwaukee Bd. of Sch. See Milwaukee Teachers' Ed. Ass'n v. Dirs., 227 Wis. 2d 779, 786, 596 N.W.2d 403 (1999); Woznicki v. Erickson, 202 Wis. 2d 178, 183, 549 N.W.2d 699 (1996); Wis. Newspress v. Sheboygan Falls Sch. Dist., 199 Wis. 2d 768, 781, 546 N.W.2d 143 (1996); Breier, 89 Wis. 2d at 437; Wis. 2d 86, Kraemer 101, Wis. 2d at 694. 599 Brothers, N.W.2d 75 Inc. (Ct. Dane County, 229 1999); Rathie, 142 v. App. Osborn and Amicus argue that unlike Rathie, where the student records involved were personally identifiable, when applying the balancing test here the court should conclude that the public's interest in inspection and openness outweighs any potential detriment to the public interest in disclosure. The requested According to information Osborn and is not Amicus, personally therefore, identifiable. this is not an exceptional case where, contrary to the presumption of openness, access should be denied. ¶39 openness We agree. in We begin by applying the presumption of Wisconsin, and pursuant to Wis. Stat. § 19.31, access should be denied only in an exceptional case. We have already concluded that the specific statutory exception of FERPA does not preclude disclosure of the requested records, and we now conclude that there is no overriding keeping the requested records confidential. Wis. 2d at 397. 31 public interest in See Hathaway, 116 No. ¶40 We conclude that applying the balancing 00-2861 test produces a different result than Blum and Rathie. here In both of those cases, either because they were small in number or because they included specific information, the requested contained personally identifiable information. concluded here that Osborn identifiable information. is not records We have already requesting personally Any detriment to the public interest, such as a privacy or reputational interest, therefore, is not present. the In contrast, the public interest in open access and ability admissions to analyze policies and data regarding procedures the remains. University's After weighing these competing public policy interests, we conclude that the presumption of openness and access to public records prevails; public policy favors disclosure in this case. We reiterate that Wisconsin prefers open government and public accountability, and "only in an exceptional case may access be denied." This is not an exceptional case. § 19.31. We conclude, therefore, that the University inappropriately relied on public policy to deny Osborn's open records requests. V ¶41 open The records University's final request that was reason in for order to denying comply Osborn's with the request, the University would have to essentially create a new record, which Specifically, is not under University noted the required the open that records the law. requested information regarding test scores, grade point averages, race, etc., is maintained only in 32 the individual records of No. applicants. 00-2861 The University then cited Wis. Stat. § 19.35(1)(L) and stated, "Custodians of public records are not required to create new records by extracting information records and compiling it in a new format. from existing For this additional reason, disclosure of the records requested must be denied." ¶42 We custodian's begin by examining duty to redact. the statutes regarding Wis. Stat. § 19.35(1)(L) a states: "Except as necessary to comply with pars. (c) to (e) or s. 19.36(6), this create new a subsection record by does not extracting require an information authority from existing records and compiling the information in a new format." noted, § 19.35 must be read in conjunction with to As § 19.36(6), which relates to the separation of information for access under the open records law. If a record contains information that is subject to disclosure under s. 19.35(1)(a) or (am) and information that is not subject to such disclosure, the authority having custody of the record shall provide the information that is subject to disclosure and delete the information that is not subject to disclosure from the record before release. § 19.36(6) (emphasis added). ¶43 The University argues that compliance with Osborn's requests would require the University to redact information from thousands redacting of the documents and personally that, under identifiable 33 the circumstances, information would No. 00-2861 essentially require the University to create a new record.15 The University recognizes that redaction, by itself, does not result in creation of a new record. In this case, however, the University contends that the burden to redact is much larger than that required by the open records law. position, the Wis. 2d 208, appeals University 213, concluded 565 that relies N.W.2d 187 an open on In support of this Schopper v. Gehring, (1997), where the records request court that 210 of would require a custodian to copy 180 hours of tape is an insufficient request under § 19.35(1)(h)16 because it is limited by subject matter or length of time. not reasonably The University analogizes this case to the burden in Schopper of transcribing 180 hours of tape and concludes that the public records law does 15 We recognize that the University makes two other arguments regarding redaction. First, the University argues that Wis. Stat. § 19.36(6) does not apply here because the application records do not contain any information that is subject to disclosure. Second, the University argues that even if obvious identifiers have been redacted, the redaction might not be sufficient to protect the confidentiality of personally identifiable information. Both of these arguments relate to our conclusions in Section III of this opinion, mainly, that Osborn is not requesting personally identifiable information and that the information requested does not result in a list of characteristics or other information making the identity of the applicant traceable. Since we have already addressed these issues, we decline to address them again in the context of the University's arguments regarding redaction. 16 Wisconsin Stat. § 19.35(1)(h) states in relevant part: "A request under pars. (a) to (f) is deemed sufficient if it reasonably describes the requested record or the information requested. However, a request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request." 34 No. 00-2861 not require it to expend numerous hours and dollars redacting records to comply with Osborn's request. ¶44 In contrast to the University's position, Osborn and Amicus argue that the University has a statutory duty to redact information that is not subject to disclosure, and then disclose the remaining requested information. the language in Osborn looks directly to Wis. Stat. § 19.36(6) and argues that the legislature enacted the statute exactly for the circumstances present in this case where disclosure and some is not. this type information of situation that is some information is subject to The legislature instructed that in a subject custodian to "shall disclosure provide the delete the and information that is not subject to disclosure from the record before release." § 19.36(6) (emphasis added). By using the word "shall," Osborn and Amicus argue that a custodian may not refuse to redact. Rather, the custodian has a duty to comply with the statute and separate information subject to disclosure from information that is not. ¶45 must We agree with Osborn and conclude that the University comply information specifically with not the statutory subject addresses to this duty to disclosure. situation delete or Section where redact 19.36(6) some of the information in the applicants' records is subject to disclosure, but some is not. We have concluded that the University must comply with Osborn's open records requests regarding the minimal information applicants' Osborn needs records, to fulfill however, 35 also research contain goals. The personally No. 00-2861 identifiable information that Osborn is not requesting and that we are not ordering the University to disclose. in the applicants' records, instructed in § 19.36(6). therefore, must The information be separated as The unambiguous and instructive word "shall" does not give a custodian, under these circumstances, the option of separating the information or simply denying the open records request. Rather, we conclude that the statute requires the custodian to provide the information subject to disclosure and delete or redact the information that is not. Applied here, providing the the University information must comply subject to with § 19.36(6) Osborn's open by records requests and delete or redact the information that is not. ¶46 Furthermore, we reject the University's Schopper because that argument is misplaced. reliance on The University is not relieved of its duty to redact under Wis. Stat. § 19.36(6) simply Schopper because was the decided University under believes § 19.35(1)(h) it as request as to subject matter or length of time. does not raise the same argument here. 17 burdensome.17 is an insufficient The University Instead, the University In a motion to strike portions of the University's brief and at oral argument, Osborn's counsel noted, in response to the University's burdensome argument, that if the University had argued its burdensome position in the circuit court and if given the opportunity to respond to that argument, Osborn would provide evidence that 16 other Universities have complied with similar public records requests. We deny Osborn's motion to strike portions of the University's brief, since we have considered and rejected the arguments to which counsel objected. We note, however, that although it is not controlling, the fact that 16 other Universities have complied with similar requests is certainly of some persuasive value. 36 No. attempts to use language unreasonable burden" on the in Schopper custodian, relating to apply here and excuse it from the statutory duty to redact. University's argument. context. 00-2861 it "an to We reject the It uses the language in Schopper out of In addition, we note that under the open records law, the University is not required, by itself, to bear the cost of producing documents in response to Osborn's request. Under § 19.35(3)18, the University may impose a fee on Osborn for the 18 Wisconsin Stat. § 19.35(3) states: (3) FEES. (a) An authority may impose a fee upon the requester of a copy of a record which may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law. (b) Except as otherwise provided by law or as authorized to be prescribed by law an authority may impose a fee upon the requester of a copy of a record that does not exceed the actual, necessary and direct cost of photographing and photographic processing if the authority provides a photograph of a record, the form of which does not permit copying. (c) Except as otherwise provided by law or as authorized to be prescribed by law, an authority may impose a fee upon a requester for locating a record, not exceeding the actual, necessary and direct cost of location, if the cost is $50 or more. (d) An authority may impose a fee upon a requester for the actual, necessary and direct cost of mailing or shipping of any copy or photograph of a record which is mailed or shipped to the requester. (e) An authority may provide copies of a record without charge or at a reduced charge where the authority determines that waiver or reduction of the fee is in the public interest. 37 No. location, requested reproduction records, 00-2861 or but photographic processing of the fee exceed actual, may not the the necessary and direct cost of complying with the open records requests. ¶47 Based on Wis. Stat. § 19.36(6), the we unambiguous conclude that the language University in has a duty to comply with Osborn's open records requests by redacting or deleting the information that is not subject to disclosure. We previously concluded that Osborn is not requesting personally identifiable information that is protected from disclosure either by FERPA or by public policy considerations. Consistent with Osborn's open records requests, therefore, the University must comply with § 19.36 by redacting or deleting personally identifiable information in the application records, before releasing the information subject to disclosure. VI ¶48 We have In summary, we reverse the court of appeals' decision. concluded that identifiable information. rely on FERPA to Osborn is not requesting personally Consequently, the University cannot prohibit the disclosure of the requested (f) An authority may require prepayment by a requester of any fee or fees imposed under this subsection if the total amount exceeds $5. If the requester is a prisoner, as defined in s. 301.01(2), or is a person confined in a federal correctional institution located in this state, and he or she has failed to pay any fee that was imposed by the authority for a request made previously by that requester, the authority may require prepayment both of the amount owed for the previous request and the amount owed for the current request. 38 No. information balanced found concluded student public the in policy that because application records. We interests involved, requested the 00-2861 and information have have is not personally identifiable, there is no overriding public policy interest in keeping the requested records confidential. Finally, we have addressed the University's duty to redact under Wis. Stat. § 19.36(6) and have concluded that the unambiguous language of the statute requires the University to provide the information that is subject to disclosure, delete the information that is not. and to redact or Consistent with Osborn's open records requests and FERPA, therefore, the University must redact or delete personally identifiable information in the application records before releasing the information subject to disclosure. We have also noted that the University is entitled to charge a fee for the actual, necessary and direct cost of complying with these open records requests. By the Court. The decision of the court of appeals reversed. ¶49 SHIRLEY S. ABRAHAMSON, C.J., did not participate. 39 is No. 1 00-2861
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