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01-0189, 01-0295 Atlas Transit Co. et al. v. Korte, Superintendent, Milwaukee Public Schools

By: dmc-admin//November 19, 2001//

01-0189, 01-0295 Atlas Transit Co. et al. v. Korte, Superintendent, Milwaukee Public Schools

By: dmc-admin//November 19, 2001//

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Even though the bus companies maintained that the MPS records custodian was required, under Woznicki v. Erickson, 202 Wis.2d 178 (1996) and Klein v. Wisconsin Resource Center, 218 Wis.2d 487 (1998), to set out exactly what factors were considered in arriving at its decision to release the information, we can find nothing in either Woznicki or Klein that requires the records custodian to prepare a detailed analysis of the factors used in applying the balancing test between public and private interests when determining whether to release information under Wis. Stat. sec. 19.35. The case law only mandates that the records custodian balance the competing interests for access and against those favoring denial of the records. The records custodian is under no obligation to state his or her reasoning, only the resulting conclusion.

“We observe, as the bus companies concede, that the DPPA does not prohibit the release of this information by MPS. Therefore, there is no exclusion under Wis. Stat. § 19.36. Indeed, the statute limits the exemption only to ‘any record which is specifically exempted from disclosure by state or federal law.’ …

This restriction on exempting only specific information prohibited from disclosure by state or federal law is in keeping with the public policy in this state that entitles persons to ‘the greatest possible information regarding the affairs of government,’ noting that ‘[t]he 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….

“Additionally, assuming the DPPA’s reach included MPS, the act contains several exceptions that appear to exempt the sought-after information. Exceptions exist permitting disclosure in connection with matters of motor vehicle or driver safety (see 18 U.S.C. § 2721(b)), and use by an employer to obtain or verify information related to a holder of a commercial driver’s license (see 18 U.S.C. § 2721(b)(9)). In sum, the DPPA does not prohibit MPS from releasing information on drivers collected by a private employer, and, even if it did, several exceptions appear to permit this type of use of the information.”

Orders affirmed.

Recommended for publication in the official reports.

DISSENTING OPINION: Schudson, J. “Because the record establishes that the Milwaukee Public Schools’ records custodian carried out the balancing test, required by Woznicki v. Erickson, 202 Wis.2d 178, 549 N.W.2d 699 (1996), without accurate and appropriate consideration of federal law, I would remand.”

Dist I, Milwaukee County, Haese, J., Curley, J.

Attorneys:

For Appellant: Kevin J. Kinney, Greenfield; Mark J. Goldstein, Greenfield

For Respondent: Roxane L. Crawford, Milwaukee

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