author: BROWN, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Glenn E. Davis, Defendant-Respondent.

    Court of Appeals

      No. 00-2916-CR.

      Submitted on briefs August 3,2001. —
    Decided August 29, 2001.

    2001 WI App 210
    (Also reported in 634 N.W.2d 922.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Marguerite M. Moeller, assistant attorney general, and Janies E. Doyle, attorney general.

      On behalf of the defendant-respondent, the cause was submitted on the brief of James M. Shellow and Catherine E. Levinson of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., of Milwaukee.
    Before Nettesheim, EJ., Brown and Snyder, JJ.

       Petition to review granted 11-27-01.

   BROWN, J.

¶ 1. In this appeal we consider whether a defendant who intends to present expert testimony pursuant to State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), can be compelled to submit to a psychological examination by a state-selected expert without violating his or her constitutional right against self-incrimination. In Richard A.R, this court held that a defendant may present expert psychological testimony as to his or her character for sexual deviance in order to show the defendant lacks the psychological profile of a sex offender and is therefore unlikely to have committed the crime. Id. at 795. We determine that a defendant who presents such expert testimony puts his or her mental status in issue and thereby waives the right against self-incrimination. Because fundamental fairness in the criminal process dictates that the State have access to the same quality of psychiatric evidence, see State v. Maday, 179 Wis. 2d 346, 357, 507 N.W.2d 365 (Ct. App. 1993), we conclude that a defendant who manifests the intent to introduce Richard A.R testimony may be ordered to submit to a psychiatric evaluation by an expert chosen by the State. Of course, the State's use of its psychiatric testimony is for the sole purpose of rebutting the defendant's presentation of psychiatric character evidence. Therefore, we reverse the order of the trial court denying the State's motion to compel Glenn E. Davis to submit to a reciprocal psychological examination and remand to the trial court to conduct further proceedings consistent with this opinion. ’

¶ 2. Davis is charged with repeated sexual assault of a child, contrary to Wis. Stat. § 948.025 (1999-2000), and second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2). Following a preliminary hearing and the filing of the information, Davis entered not guilty pleas. His counsel filed a Notice of Expert Witness citing to Richard A.R, and stating the intent to call Dr. Bronson Levin to testify that Davis "does not exhibit character traits consistent with a sexual disorder, such as pedophilia, that the likelihood that someone without a sexual disorder would assault a child and the data upon which this opinion is based." The State responded with a motion to compel Davis to submit to a psychological examination by a state-selected expert. The State argued that if the trial court permitted Davis to present Levin's opinions pursuant to Richard A.R, then the State should be entitled to a reciprocal examination pursuant to Maday.

¶ 3. The trial court denied the State's motion on the basis that compelling Davis to submit to a psychological exam by the State's expert would violate his right against self-incrimination. The trial court specifically stated it was not yet ruling that the defense expert would be allowed to testify and reserved for future consideration the question regarding qualification of the expert and the scientific basis of his opinion. The court thus confined its ruling to deciding that Davis could not be compelled to submit to a reciprocal psychological examination by an expert chosen by the State. We subsequently granted the State's petition for leave to appeal the trial court's nonfinal order.

¶ 4. Whether particular conduct by a criminal defendant constitutes a waiver of his or her right against self-incrimination is an issue subject to this court's independent review. See Neely v. State, 97 Wis. 2d 38, 43, 292 N.W.2d 859 (1980) (waiver of privilege is a constitutional issue). Furthermore, the issue of whether a compulsory psychological examination is constitutionally permissible presents a question of law subject to de novo review. See Maday, 179 Wis. 2d at 353.

¶ 5. We begin our discussion with Richard A.P. In that case, like this one, the defendant sought the admission of expert testimony to demonstrate that he did not exhibit character traits consistent with a sexual disorder such as pedophilia. We wrote in the opinion that Richard's expert was prepared to testify that absent a diagnosable sexual disorder, it is unlikely that a person would molest a child. Richard A.P., 223 Wis. 2d at 791. We concluded that such evidence was relevant and admissible under discovery rules pertaining to expert testimony in tandem with the rules governing character evidence. Id. at 795.

¶ 6. We also observed in a footnote that the presentation of character evidence by the defendant comes with a risk that the State will introduce countervailing character evidence by way of rebuttal. Id. at 795 n.9. The case before us now requires an exploration of that risk referred to in Richard A.P. The State argues that a defendant who chooses to present Richard A.P. testimony puts his or her mental status in issue and thereby waives his or her right against self-incrimination. According to the State, the defendant must submit to a psychological examination by a state-selected expert or else forego the presentation of the Richard A.R testimony.

¶ 7. The State concedes there is no case directly on point for the proposition it is advancing, but finds analogous support in sentencing and penalty phase cases, see Savino v. Commonwealth, 391 S.E.2d 276, 280-81 (Va. 1990), insanity defense cases, see State v. Hutchinson, 766 P.2d 447, 452 (Wash. 1989), and battered woman's syndrome cases, see State v. Briand, 547 A.2d 235, 238-39 (N.H. 1988). The premise of these cases is that the defendant injected the issue of his or her mental status into the trial, thereby waiving the Fifth Amendment privilege. In Briand, for example, the New Hampshire Supreme Court held that a defendant relying on expert testimony that she suffered from battered-spouse syndrome as an affirmative defense may be compelled to submit to an evaluation by a state expert without violating the Fifth Amendment. The court reasoned that the defendant waived the privilege by her "anticipated reliance on expert evidence as a mechanism for introducing her own account of the facts." Id. at 238. We find the following language of the New Hampshire Supreme Court instructive:

Because the expert's testimony is ... predicated on the defendant's statements, the latter are explicitly or implicitly placed in evidence through the testimony of the expert during his direct and cross-examination. Since a defendant would waive his privilege against compelled self-incrimination if he took the stand and made those same statements himself, his decision to introduce his account of relevant facts indirectly through an expert witness should likewise be treated as a waiver obligating him to provide the same access to the State's expert that he has given to his own, and opening the door to the introduction of resulting State's evidence, as the State requests here, to the extent that he introduces comparable evidence on his own behalf. Just as the State may not use a compelled psychological examination to circumvent the privilege against self-incrimination, neither may a defendant voluntarily employ a psychological witness wholly to negate the waiver that his direct introduction of personal testimony would otherwise effect.

Id. at 239 (citation omitted). Clearly, the rationale for finding waiver in Briand was that expert witnesses should not be allowed to serve as a substitute for the defendant's version of how the crime occurred.

¶ 8. Davis claims that Briand and the other cases the State relies upon are legally distinguishable because in each of them, the defendant was not claiming that he or she had not committed the act underlying the charged crime. Instead, as the State concedes, the contested issue was limited to such questions as legal responsibility for the crime (Hutchinson), whether the death penalty should be imposed (Savino), or the defendant's mental state at the time of the crime {Briand). In this case, however, Davis is denying that he committed the charged crime. He intends to offer the expert testimony regarding his character for sexual deviance as circumstantial evidence of his innocence.

¶ 9. Regardless of how Davis characterizes his offer of proof, the fact remains that there is more than actus reus at issue here. He has indicated his intent to put character in issue. His expert's opinion presumably will be based upon one or more interviews with Davis and other standardized testing procedures. To the extent that the expert's opinion rests on Davis's statements, we agree with the State that the rationale of Briand and similar cases is equally applicable here. A defendant who intends to present Richard A.P., evidence through an expert is using that expert as a conduit for presenting the defendant's statements about his or her sexual history, sexual preferences and sexual attitudes. Were the defendant to take the stand and testify about these subjects, he or she would be deemed to have waived his or her privilege and would be required to submit to cross-examination. The defendant cannot be permitted to avoid this result by using an expert as a surrogate.

¶ 10. Davis further counters that in Briand and other cases cited by the State, where the defendant was deemed to waive his or her right against self-incrimination, the defendant did so by offering expert testimony in support of an affirmative defense on which the defendant had the burden of proof. Davis, on the other hand, is offering expert testimony to rebut the prosecution's claim that he committed the crime. Offering evidence on a matter for which he does not carry the burden of proof, he posits, should not constitute a waiver of the privilege. Davis cites to several cases that support this distinction.

¶ 11. We are convinced that Davis's affirmative defense/burden of proof approach elevates form over substance. See United States v. Halbert, 712 F.2d 388, 390 (9th Cir. 1983). While Davis is not technically-asserting an affirmataive defense, he is certainly offering a theory of defense. We see no reason to distinguish the ability of the State to compel psychiatric testimony in response to an affirmative defense from the use of such testimony to rebut the defendant's theory of defense based on expert character evidence. Both instances place the defendant's mental status in issue and "hinge on the workings of a defendant's mind at the time of the offense." United States v. White, 21 F. Supp. 2d 1197, 1200 (E.D. Cal. 1998). Neither Davis's rights under the Fifth Amendment to the United States Constitution nor his rights under article I, section 8 of our state constitution are violated by a court-ordered interview, provided that the psychiatrist's testimony is limited to use in rebuttal.

¶ 12. Our decision regarding the availability of a court-ordered examination of a defendant who seeks to introduce expert testimony as character evidence is consistent with the approach taken by other courts when faced with a defendant who seeks to negate the mens rea of the charged crime through expert testimony. In White, the defendant, asserting diminished capacity, argued that a court-ordered examination concerning an element of the crime "which the government bears the burden of proving" would violate the Fifth Amendment. White, 21 F. Supp. 2d at 1198. We find the court's reasoning instructive:

The Fifth Amendment does not bar the government's ability to access the same type of evidence, and a fair and effective criminal process requires that the government "be able to follow where the defendant has led."
The fact that White's mental state is an element of the crime which the government must prove does not alter this conclusion. . .. Diminished capacity may not technically be an insanity defense, but both defenses focus on a defendant's mental capacity. The insanity defense "operates to completely excuse the defendant whether or not guilt can be proven," while the diminished capacity defense "is directly concerned with whether the defendant possessed the ability to attain the culpable state of mind which defines the crime." Both defenses thus hinge on the workings of a defendant's mind at the time of the offense. No principled reason exists to allow psychiatric probing of these workings when insanity is at issue but to disallow it on the issue of diminished capacity.

Id. at 1200 (citations omitted). Similarly, in United States v. Kessi, 868 F.2d 1097 (9th Cir. 1989), the defendant's expert testified concerning the defendant's ability to form the requisite intent to commit mail and securities fraud. Id. at 1108. Specifically, the expert testified that the defendant did not fully understand his actions due to posttraumatic stress disorder. Id. The court ruled that it was proper to admit the testimony of the State's expert witness to counter the defendant's psychiatric evidence once the defendant opened the door. Id.

¶ 13. The same analysis applies in this instance where Davis is asserting his innocence on the basis of the lack of a mental infirmity. Analogous to the cases cited above, he opens the door to state compelled evaluation by injecting evidence of a character trait for sexual deviancy into the trial. It simply does not matter for Fifth Amendment purposes whether Davis is using this evidence as part of an affirmative defense or attempting to persuade the jury as to an element of the offense upon which the government has the burden of proof. Such a rule allows for reciprocal discovery of psychiatric defenses and promotes "society's conduct of a fair inquiry into the defendant's culpability." White, 21 F. Supp. 2d at 1200 (citation omitted).

¶ 14. Fundamental fairness was at the heart of our decision in Maday, a case which supports the State's argument that it should be entitled to a reciprocal examination of Davis by its own expert. In Maday, the State retained experts to examine the sexual assault victims and proposed to offer the experts' opinions that the behavior of the victims was consistent with the behavior of other victims of sexual assault. Maday, 179 Wis. 2d at 357. In response, Maday requested an order requiring that the children submit to psychological examinations by qualified experts selected by Maday. Id. at 350. We recognized the need to balance the interests of the victims' privacy against "the constitutional right of the defendant to a full and fair explication of the evidence," id. at 358, and concluded that "[fundamental fairness requires that Maday be given the opportunity to present relevant evidence to counter [the expert testimony] from the state." Id. at 357.

¶ 15. Davis argues that Maday should not apply to this case because it was premised on constitutional rights reserved for the accused. We recognize that Maday -factually differs from the instant situation in that there it was the State which planned to use expert psychological testimony to bolster its case. However, we also noted in Maday that the defendant's constitutional right to present witnesses and evidence is not absolute; the defendant must comply with established rules of procedure in order to accommodate the State's interest in the trial process — fairness and the reliable ascertainment of the truth. Id. at 354. We conclude that fundamental fairness requires that the State be allowed reciprocal discovery under these facts as well.

¶ 16. Reciprocal discovery means that the State is not limited to responsive mechanisms such as cross-examining the defense expert or calling its own nonex-amining expert to counter Davis's Richard A.P. testimony. In Maday, we expressed the view that generally the only effective rebuttal of psychiatric opinion testimony is contradictory opinion testimony. Maday, 179 Wis. 2d at 356-57. We agree with the State that in a jury trial, the opinion of an expert who has interviewed the defendant and administered a battery of psychological tests will almost certainly be accorded greater weight than the opinion of an expert who has never met the defendant. Therefore, Davis must submit to a psychiatric interview by a state-selected expert or else forego the presentation of the Richard A.R testimony. To hold otherwise would deprive the State of the only effective means it has of controverting Davis's proof on whether he has a diagnosable sexual disorder, an issue that he proposes to interject into the case.

¶ 17. Davis contends that State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607, 150 N.W.2d 318 (1967), commands a different outcome. He claims that under Raskin and its progeny, evidence derived from a compelled psychiatric examination into a defendant's mental condition cannot be offered before a jury on the issue of guilt without violating the defendant's Fifth Amendment privilege. He relies in part on the following language:

The submission to [a compulsory mental] examination under the plea of insanity should not constitute a waiver of privilege against self-incrimination. When it appears any inculpatory statements have been made by the accused during the examination, he should have his privilege ... recognized and protected at the trial by a sequential order of proof so that such evidence will not be admitted while the jury is determining the issue of guilt.

Id. at 622-23. Raskin prevents the State from using incriminating statements the defendant may make during the psychological examination on the question of sanity to prove the legally and factually separate issue of guilt or innocence. In other words, the Raskin court implemented the bifurcated trial to accommodate the defendant's Fifth Amendment right while still assuring that the State will be treated fairly in the sanity phase by being able to use the results of a compulsory mental exam.

¶ 18. Unlike insanity, the issue of whether a defendant is less likely to have committed a sexual crime because he or she lacks a character trait for sexual deviancy cannot be separated from the issue of guilt. Clearly, the purpose for which the defense introduces Richard A.R evidence is to rebut one of the elements of the charged crime; this is not an issue that Raskin addressed. Nor do we believe Raskin prevents the use of compelled testimony on the issue of guilt or innocence when the defendant introduces expert testimony on his or her character for sexual disorders.

¶ 19. Finally, Davis warns that allowing the State to use compelled psychiatric testimony to counter the Richard A.P. testimony would "impact every case in which a defendant offers character evidence." We disagree. The underlying rationale for allowing such testimony is fairness. Because Richard A.R testimony has been generated specifically for use at trial and is delivered by an expert witness, the State would be handicapped in rebutting such evidence were it limited to the tools of cross-examination and presentation of a nonex-amining expert. On the other hand, we need not be concerned with these issues in the context of lay character witnesses. A state-selected examining expert simply is not needed to counter the testimony of a lay character witness and, accordingly, our holding does not extend to that situation.

¶ 20. We conclude, therefore, that a defendant who offers expert testimony to show he or she lacks the psychological profile of a sex offender puts his or her mental status at issue and thereby waives the right against self-incrimination. Based upon concerns of fairness and the quest for truth in the criminal trial process, we further hold that a defendant who manifests the intent to present such evidence may be ordered to submit to a psychiatric evaluation by a state-selected expert. We therefore reverse the order of the trial court and remand for further proceedings consistent with this opinion. If Davis, after submitting to a psychological exam by the State's expert, later changes his mind and foregoes the presentation of the Richard A.R testimony, then the prosecution is barred from introducing any evidence derived from the state-sponsored exam on the issue of guilt.

By the Court. — Order reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 1999-2000 version.

       The State posits that State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), is erroneous because it is based on the court's misapprehension regarding the content of the expected expert testimony. It points to a later, out-of-court statement by Richard's expert in which he asserted that drawing a causal connection between a defendant's guilt or innocence and a sexual disorder is contrary to his expert opinion. This later statement was not part of our record. We confined ourselves to the assertions in the offer of proof. Therefore, this statement is irrelevant to the validity of our holding in Richard A.P. We further note that had the expert been allowed to testify, any discrepancy in his opinion regarding sexual deviance and the predisposition to molest a child would have been developed during the trial. Indeed, this aspect of the expert's testimony would have been ripe for rebuttal, but it does nothing to undermine the reasoning of our decision in Richard A.R Moreover, the supreme court denied the State's petition for review of that case and, contrary to the view of the State, it remains good law.

       For example, in State v. Fair, 496 A.2d 461 (Conn. 1985), the defendant raised the affirmative defense of extreme emotional disturbance to a charge of murder. Id. at 463. The defendant challenged a compelled psychiatric examination. The court noted that a defendant, "by merely contesting the intent element of a charged crime, does not ordinarily put his mental status in issue and may not be subjected to a court-ordered psychiatric evaluation." Id. at 464 n.3. In the instant case, however, the court stated the defendant had put his mental status at issue by asserting the defense of extreme emotional disturbance and therefore relinquished his privilege against submitting to a court-ordered examination.
      Similarly, in United States v. Davis, 93 F.3d 1286 (6th Cir. 1996), the Sixth Circuit Court of Appeals observed a distinction between a defendant's introduction of psychiatric evidence to satisfy an affirmative defense and the introduction of such evidence to negate an element of the crime on which the State bears the burden of proof:
      The defendant who claims insanity interjects a new issue into the proceedings on which he or she hears the burden of proof. The privilege is not violated hy an examination, because the examination does not concern an element of the crime... . When the defendant claims "diminished capacity," however, he or she seeks to undercut the government's proof of an element of the offense. Therefore, any compelled examination will necessarily involve self-incrimination.

        Id. at 1295 n.8 (citations omitted). Other federal courts have rejected the affirmative defense/bur den of proof distinction in determining the status of the defendant's Fifth Amendment privilege. See, e.g., United States v. White, 21 F. Supp.2d 1197, 1200 (E.D. Cal. 1998) (citing to United States v. Halbert, 712 F.2d 388, 390 (9th Cir. 1983)). Furthermore, several courts have been presented with the argument that while compelled psychiatric testimony is appropriate in response to an insanity defense, it is inappropriate in response to a mental infirmity defense other than insanity. The courts have overwhelmingly rejected this distinction as being irrelevant in the context of the defendant's privilege. See Commonwealth v. Morley, 681 A.2d 1254, 1258 n.5 (Pa. 1996) (citing cases and stating "whether one defense can truly be characterized as involving issues of.'guilt' whereas another cannot, simply [does] not advance our analysis"); see also Commonwealth v. Diaz, 730 N.E.2d 845, 852 n.6 (Mass. 2000).


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Appellant, v. James G. Langenbach, Defendant-Respondent.
    Court of Appeals

      No. 01-0851-CR.

      Submitted on briefs August 3,2001. —
    Decided August 29, 2001.

    2001 WI App 222
    (Also reported in 634 N.W.2d 916.)

      On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert J. Jambois, District Attorney, Kenosha County.

      On behalf of the defendant-respondent, the cause was submitted on the brief of Patrick M. Donnelly, assistant state public defender, of Madison.
    Before Brown, Anderson and Snyder, JJ.
   SNYDER, J.

¶ 1. The State filed an interlocutory appeal of a trial court order refusing to allow it to call the defendant, James G. Langenbach, as an adverse witness at the mental responsibility stage of his bifurcated criminal trial. The State maintains that Langenbach's Fifth Amendment privilege against self-incrimination does not apply at this stage of the proceeding. We disagree and affirm the order of the trial court.

FACTS

¶ 2. The facts in this case are not in dispute. On May 26, 1999, an information was filed charging Lan-genbach with two counts of attempted first-degree intentional homicide while armed with a dangerous weapon, two counts of intentionally causing great bodily harm to a child while armed with a dangerous weapon as a repeat offender with a race-based penalty enhancer, and two counts of leaving the scene of an accident involving great bodily harm as a repeat offender. Langenbach initially pled not guilty and not guilty by reason of mental disease or defect to the charges.

¶ 3. On February 19, 2001, Langenbach entered pleas of no contest to all six charges listed in the information, all as a repeat offender; however, he retained his plea of not guilty by reason of mental disease or defect.

¶ 4. On February 20, 2001, a jury trial was scheduled for the second, mental responsibility, phase of the bifurcated trial. Prior to jury selection, the State filed a motion asking to call Langenbach adversely as a witness, arguing that Langenbach had no Fifth Amendment privilege at this stage in the proceeding. The trial court denied the State's motion, concluding that Langenbach's Fifth Amendment privilege did apply at this stage, and that he could not be called as an adverse witness. After the defense's opening statement, the trial court granted the State's request for a mistrial for reasons unrelated to this appeal.

¶ 5. The State again moved the trial court for an order allowing it to call Langenbach as an adverse witness at the mental responsibility phase of the trial, making the same argument, that Langenbach's Fifth Amendment privilege did not apply. Again, the trial court denied the State's motion. On April 17, 2001, we granted the State's petition for leave to appeal the trial court's nonfinal order.

DISCUSSION

¶ 6. This appeal involves the application of undisputed facts to federal and state constitutional principles which we review independently of the trial court. State v. Hornung, 229 Wis. 2d 469, 475, 600 N.W.2d 264 (Ct. App. 1999).

¶ 7. The State argues that the trial court erred when it held that Langenbach could not be called as an adverse witness at the mental responsibility phase of his criminal trial after he had already pled no contest and been found guilty of the charges. Case law belies this argument.

¶ 8. The Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, demands that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V The Wisconsin Constitution holds approximately the same. Wis. Const. art. I, § 8.

¶ 9. Contrary to the State's assertions, a defendant does not lose his or her Fifth Amendment rights after pleading guilty to criminal charges. The Wisconsin Supreme Court has recognized that the Fifth Amendment privilege extends beyond a guilty plea and conviction. State v. Marks, 194 Wis. 2d 79, 91, 533 N.W.2d 730 (1995). When a person is convicted, by guilty plea or otherwise, his or her privilege against self-incrimination continues at least until sentencing. State v. McConnohie, 121 Wis. 2d 57, 65, 358 N.W.2d 256 (1984). A witness who has not yet been sentenced might reasonably fear that his or her testimony could cause a sentencing court to impose a harsher sentence than it would have otherwise imposed without the additional testimony. Marks, 194 Wis. 2d at 93. Any effort by the State to compel a defendant to testify against his or her will at his or her sentencing hearing clearly contravenes the Fifth Amendment. Estelle v. Smith, 451 U.S. 454, 463 (1981). Because there is a possibility that Langen-bach could be sentenced in this matter if the jury finds him to be mentally responsible for his actions, his Fifth Amendment privileges survive his no contest pleas.

¶ 10. Potential plea withdrawal is another reason for holding that the Fifth Amendment privilege continues at least through sentencing. Marks, 194 Wis. 2d at 92. In Wisconsin, a defendant can withdraw his or her guilty plea before sentencing for any "fair and just reason." McConnohie, 121 Wis. 2d at 68 (citation omitted). Incriminating statements may affect the trial court's discretionary determination as to the existence of a fair and just reason to withdraw that plea. Id. "[T]estimony could, as a practical matter, make a defendant's guilty or no contest plea irrevocable," which amounts to self-incrimination. Id.

¶ 11. Furthermore, a witness may reasonably and appreciably fear incrimination while an appeal is pending or during that time when he or she may appeal his or her conviction and has good faith intentions of doing so. Marks, 194 Wis. 2d at 92. This fear of providing incriminating testimony is a legitimate fear which warrants the application of the Fifth Amendment. Id. at 94. Thus, it is irrelevant that Langenbach has already pled guilty; his Fifth Amendment privilege does not terminate after his guilty plea but continues with him through disposition and a potential appeal.

¶ 12. The State tries to compare the mental responsibility stage of a criminal trial to a civil commitment proceeding, such as the one in Allen v. Illinois, 478 U.S. 364 (1986), and argues that the Fifth Amendment only protects a defendant in a noncriminal proceeding from being compelled to answer questions that might inculpate him or her in a future or pending criminal case. First, Allen is inapplicable to the case at hand; as the State admits, the proceeding in Allen involved a civil commitment proceeding, not a bifurcated criminal trial. We do not agree that the procedure followed in civil commitments should bear on the procedure to be followed in criminal cases. State v. Murdock, 2000 WI App 170, ¶ 28, 238 Wis. 2d 301, 617 N.W.2d 175.

¶ 13. Contrary to the State's arguments, the United States Supreme Court has held that the availability of the Fifth Amendment privilege does not turn upon the type of proceeding in which the protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. Estelle, 451 U.S. at 462. To sustain the Fifth Amendment privilege, "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." McConnohie, 121 Wis. 2d at 69 (citation omitted). "The privilege is not only intended to protect a defendant when his answers would lead to a conviction ... but is intended to protect a defendant when the defendant 'apprehends a danger from a direct answer.'" Marks, 194 Wis. 2d at 94 (citation omitted). The United States Supreme Court has recognized that a legitimate danger is that of incarceration or the impending threat of the deprivation of one's liberty. Id. at 94-95. Here, there is a legitimate impending threat of the deprivation of Langenbach's liberty, either through commitment to a mental hospital or imprisonment.

¶ 14. Furthermore, we disagree that the mental responsibility phase is so detached from the criminal proceeding so as to prohibit invocation of the Fifth Amendment. Wisconsin's system of using a bifurcated trial in cases in which the defendant enters a plea of not guilty by reason of mental disease or defect was created in State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607, 627, 150 N.W.2d 318 (1967). The Raskin court addressed a statute that, at the time, established that pleas of not guilty and pleas of not guilty by reason of insanity were to be tried concurrently and not in a split trial. Id. at 614-18. In order for this statute to conform with due process, the Raskin court held that a defendant was entitled to a sequential order of proof on the issue of guilt and insanity so that inculpatory statements made in a compulsory mental examination would not be divulged to the jury before guilt was determined. Id. at 623-27. The legislature codified the Raskin bifurcated trial procedure in 1969. Laws of 1969, ch. 255, § 63. In 1987, the legislature replaced the statute codifying Raskin with Wis. Stat. § 971.165, expanding the rules to be followed in cases where the defendant pleads not guilty by reason of mental disease or defect, but maintaining the basic bifurcated trial process with its sequential order of proof as first established in Raskin 1987 Wis. Act 86, § 1.

¶ 15. Then in 1988, the Wisconsin Supreme Court issued State v. Koput, 142 Wis. 2d 370, 418 N.W.2d 804 (1988), which held that a unanimous jury verdict was not required on the issue of a defendant's mental responsibility. Id. at 374. However, Koput did not clearly establish that the responsibility phase is sufficiently removed from the overall criminal proceedings such that all criminal procedure is proscribed. Murdock, 2000 WI App 170 at ¶ 20.

¶ 16. Koput explained that Wisconsin's system of having a single, bifurcated trial developed only because the Raskin court was constrained by the then-existing statute demanding one trial for both pleas of not guilty and not guilty by reason of insanity:

It was only the constraint of the then existing statute that led to the present sequential procedure. Raskin clearly states that the issues are independent and should be separately tried. There is no intimation that both issues are to be resolved by criminal trials. Indeed, Raskin makes it clear they are not, that each determination is separate and independent. Our present sequential trial is merely a method of insuring due process, while allowing this court in 1967 to adhere to the extent possible to the existing statutory requirement of a unitary trial. But this deference to the legislature, then, should not be construed to mean that both phases are but divisions of a single criminal trial. They are not. Raskin makes that clear.

Koput, 142 Wis. 2d at 394. Koput merely clarified that the phases of a bifurcated trial serve different purposes; the first phase settles the issue of criminal guilt, while the responsibility phase is dispositional in nature. Id. at 388-89. The Koput court also stated:

Clearly, at one time when the burden of proving sanity was on the state and a unanimous finding of sanity was required, the "proceeding" was criminal. Hence, to some degree, in its ancestry at least, it is not completely divorced jurisgenetically from its antecedents. We, therefore, will not denominate it a civil proceeding. Rather, it is a special proceeding in the dispositional phase of a criminal proceeding — a proceeding that is not criminal in its attributes or purposes. (Emphasis added.)

Id. at 397.

¶ 17. In Murdock, the defendant made arguments similar to the ones proferred here by the State. Mur-dock argued that Koput and Raskin both held that the responsibility phase was not a part of the criminal trial; because the responsibility phase was not criminal in nature, according to Murdock, provisions of criminal procedure did not apply. Murdock, 2000 WI App 170 at ¶ 17. We rejected Murdock's arguments, as we do the State's here.

¶ 18. After examining the background of the bifurcated trial in Wisconsin in Murdock, we determined that the "special proceeding" of the responsibility phase is not so divorced from the criminal case that all rules of criminal procedure are inapplicable. Id. at ¶ 20. While Koput suggests that the mental responsibility phase could have evolved as an entirely separate proceeding from the guilt phase, the fact remains that it has not. Murdock, 2000 WI App 170 at ¶ 24. "The statutes governing the procedures for trying pleas of not guilty by reason of mental disease or defect have kept the responsibility phase and guilt phase attached in procedure even as they are detached in nature and purpose." Id.

¶ 19. Here, as in Murdock, we consider it important that the legislature has not separated the proceedings for the determinations of guilt and mental responsibility, as Koput suggests it could have. Murdock, 2000 WI App 170 at ¶ 27. The statute setting forth the procedures for both the guilt phase and the responsibility phase is a part of the chapter on criminal procedure and a defendant can only be found not guilty by reason of mental disease or defect if he or she first admits to the criminal conduct or is found guilty. Id. While we agree that Koput explains that the decision made in the responsibility phase is not criminal in nature, the fact is that the mental responsibility phase remains a part of the criminal case in general. Murdock, 2000 WI App 170 at ¶ 27. As such, Langenbach is entitled to invoke his Fifth Amendment privilege at the mental responsibility phase without penalty. The Fifth Amendment is "as broad as the mischief against which it seeks to guard" and the privilege is fulfilled only when a criminal defendant is "guaranteed the right 'to remain silent.. . and to suffer no penalty ... for such silence.'" Estelle, 451 U.S. at 467-68 (citation omitted).

CONCLUSION

¶ 20. The trial court correctly denied the State's motion to call Langenbach as an adverse witness at the mental responsibility stage of his bifurcated trial. Langenbach's Fifth Amendment privilege against compelled testimonial self-incrimination continues through the mental responsibility stage of his criminal trial. We therefore affirm the order of the trial court.

By the Court. — Order affirmed.

       We want to emphasize that this is not a case where a defendant pleads not guilty by reason of mental disease or defect, thereby placing his or her mental state at issue, and then refuses to speak with doctors, asserting his or her Fifth Amendment privilege against self-incrimination. There has been no argument in this appeal that Langenbach has failed to submit to any required mental examination. Here, the only issue is whether the State can call Langenbach to provide testimony as an adverse witness during the mental responsibility phase of his own criminal trial. -


author: LUNDSTEN, J.

text:
    In re the Annexation of the Smith Property: Town of Campbell, Plaintiff-Respondent, v. City of La Crosse, Defendant-Appellant. [Case No. 00-1913.] In re the Annexation of the Becker Property: Town of Campbell, Plaintiff-Respondent, v. City of La Crosse, Defendant-Appellant. [Case No. 00-1914.] In re the Annexation of the McCormick Property: Town of Campbell, Plaintiff-Respondent, v. City of La Crosse, Defendant-Appellant. [Case No. 00-1915.] In re the Annexation of the Edwards Property: Town of Campbell, Plaintiff-Respondent, v. City of La Crosse, Defendant-Appellant. [Case No. 00-1916.]

      Court of Appeals

      Nos. 00-1913 through 00-1916.

      Submitted on briefs February 12, 2001. —
    Decided August 20, 2001.

    2001 WI App 201
    (Also reported in 634 N.W.2d 840.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Patrick J. Houlihan, city attorney of La Crosse, and Terence R. Collins and Cheryl M. Gill of Collins, Quillin & Knothe, Ltd. of La Crosse.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of John D. Claypool of Herrling, Clark, Hartzheim & Siddall, Ltd. of Appleton.
    A nonparty brief was filed by Claire Silverman of League of Wisconsin Municipalities of Madison for League of Wisconsin Municipalities.
    A nonparty brief was filed by H. Stanley Riffle of Arenz, Molter, Macy & Riffle, S.C. of Waukesha for Wisconsin Towns Association.
    Before Vergeront, EJ., Dykman and Lundsten, JJ.

       Petition to review denied 12-17-01.

   LUNDSTEN, J.

¶ 1. The Town of Campbell filed four suits against the City of La Crosse, challenging four ordinances which annexed certain properties in the Town to the City. The Town challenged the validity of the annexations on the basis that the annexed property did not meet the contiguity requirement of Wis. Stat. § 66.021(2) (1995-96), and moved for summary judgment. The trial court granted summary judgment in each case in favor of the Town. The City appeals all four judgments. The appeals have been consolidated for disposition in this court. For the following reasons, we reverse and remand.

Background

¶ 2. In late 1996 and early 1997, the City of La Crosse annexed by ordinance four different properties from the Town of Campbell. In the pertinent geographic area, the Black River is about 800 feet wide and it separates the shore of the Town from the shore of the City. A bridge spans the Black River several hundred feet to the south of the southernmost disputed annexed property. The bridge does not directly connect the City to any of the annexed properties and at no point do the dry lands of the City and the annexed properties meet.

¶ 3. All annexations were made pursuant to a petition for direct annexation. Wisconsin Stat. § 66.021(2) (a) governs petitions for direct annexation. It provides that "territory contiguous to any city or village may be annexed thereto" under various conditions not at issue here. Wis. Stat. § 66.021(2).

¶ 4. Shortly after the annexations, the Town filed four lawsuits challenging the validity of the four ordinances passed by the City annexing the properties at issue. In its motion for summary judgment, the Town argued that the Black River separates the annexed properties from the City and, therefore, the properties are not "contiguous" to any part of the City as required by Wis. Stat. § 66.021(2). In the Town's view, the City has simply reached over the river at various points and improperly annexed land that is not in direct contact with the City.

¶ 5. After hearing arguments, the trial court granted the Town's motion for summary judgment. Relying upon Town of Delavan v. City of Delavan, 176 Wis. 2d 516, 500 N.W.2d 268 (1993), the trial court determined that the annexed properties and the City were neither touching, nor close enough to be contiguous, and invalidated all four annexations.

Discussion

¶ 6. The sole issue on appeal is whether the trial court erred when it granted the Town of Campbell's motion for summary judgment on the basis that the annexed properties were not "contiguous" to the City of La Crosse within the meaning of Wis. Stat. § 66.021(2).

¶ 7. This court reviews summary judgment decisions de novo, applying the same standards as the trial court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis. 2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). A party is entitled to summary judgment when there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

¶ 8. The construction of a statute and its application to undisputed facts are questions of law which we determine de novo. Smith, 212 Wis. 2d at 233. The guiding principle in statutory construction is to discern legislative intent. State v. Irish, 210 Wis. 2d 107, 110, 565 N.W.2d 161 (Ct. App. 1997). We first look to the language of the statute itself and attempt to interpret it based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145 (1986).

¶ 9. The City argues that the trial court erred in granting the Town's motion for summary judgment because the borderline separating the City and the Town lies at the center of the riverbed of the Black River and the contiguity requirement does not mean that dry land must meet dry land.

¶ 10. The Town relies, much as the trial court did, on Town of Delavan to support its argument that a body of water destroys contiguity. In consolidated appeals filed after the consolidated appeals in this case, and involving the same parties and same geographic area, the Town points to State v. Trudeau, 139 Wis. 2d 91, 101, 408 N.W.2d 337 (1987), for the proposition that the City and the annexed properties are separated by state land because the state owns the riverbed. The Town's reliance on common law is appropriate, but its analysis is flawed.

¶ 11. The term "contiguous" is not defined in Wis. Stat. § 66.021. It is variously defined in Webster's Third new international DICTIONARY 492 (unabridged ed. 1993) as "touching along boundaries often for considerable distances," "next or adjoining with nothing similar intervening," "NEARBY, CLOSE: not distant," and "CONTINUOUS, UNBROKEN, UNINTERRUPTED: touching or connected throughout."

¶ 12. In Town of Delavan, our supreme court discussed the contiguity requirement and noted "a trend in Wisconsin's courts to require at [a] minimum some significant degree of physical contact between the properties in question." Town of Delavan, 176 Wis. 2d at 528. At the same time, it is apparent that the statutory term "contiguous" does not always mean direct physical contact. Twenty years before Town of Delavan, the supreme court decided that properties separated by a two-lane public road were "close enough" to be contiguous for purposes of the annexation statute. Town of Lyons v. City of Lake Geneva, 56 Wis. 2d 331, 336, 202 N.W.2d 228 (1972).

¶ 13. Here, we need not explore what is "close enough." Whatever else it means, "contiguous" plainly includes properties that are in physical contact and, for the reasons that follow, we find that the annexing and annexed properties in this case are in physical contact along the riverbed.

¶ 14. The Town's argument that the properties are not in physical contact because the riverbed is owned by the state is based on a misreading of Trudeau. The Town points to a portion of the Trudeau decision that seems to say that the beds of all bodies of water are owned by the state:

"The title to the beds of all lakes and ponds, and of rivers navigable in fact as well, up to the line of ordinary high-water mark, within the boundaries of the state, became vested in it at the instant of its admission into the Union, in trust to hold the same so as to preserve to the people forever the enjoyment of the waters of such lakes, ponds, and rivers, to the same extent that the public are entitled to enjoy tidal waters at the common law." (Emphasis added.)

Trudeau, 139 Wis. 2d at 101 (quoting Illinois Steel Co. v. Bilot, 109 Wis. 418, 425, 84 N.W. 855 (1901)). But further examination reveals that all bodies of water are not treated the same.

¶ 15. The state has title to submerged lands beneath natural lakes and owners of land abutting natural lakes own only up to the ordinary high-water mark. R.W. Docks & Slips v. State, 2001 WI 73, ¶ 19, 244 Wis. 2d 497, 628 N.W.2d 781 (citing Trudeau, 139 Wis. 2d at 101); Mayer v. Grueber, 29 Wis. 2d 168, 173, 138 N.W.2d 197 (1965). But Trudeau itself clarifies that riverbeds are not normally owned by the state.

¶ 16. The Trudeau court explained that although the state " 'holds the beds underlying navigable waters in trust for all of its citizens,'" the state's role as trustee is subject to the" 'qualification that a riparian owner on the bank of a navigable stream has a qualified title in the stream bed to the center thereof.'" Trudeau, 139 Wis. 2d at 101 (quoting Muench v. Public Service Comm'n, 261 Wis. 492, 501-02, 53 N.W.2d 514 (1952)). That a riparian owner holds title to the thread, or the geographical center, of a stream is an oft-repeated proposition of law in this state. See, e.g., State v. Deetz, 66 Wis. 2d 1, 11, 224 N.W.2d 407 (1974); Mayer, 29 Wis. 2d at 173; Klingeisen v. DNR, 163 Wis. 2d 921, 928, 472 N.W.2d 603 (Ct. App. 1991).

¶ 17. The Town's reliance on Town of Delavan is unavailing because that case involved a lake, not a river. We briefly address that decision.

¶ 18. In Town of Delavan, the supreme court found that annexed property was not "contiguous," but nonetheless declined to void the annexation based on the "principle of de minimis." Town of Delavan, 176 Wis. 2d at 530. The annexed property was a peninsula separated from the annexing municipality by about 400 feet of Lake Delavan. Id. at 528. In finding that the peninsula was not "contiguous" within the meaning of Wis. Stat. § 66.021(2), the court stated that it would not expand the definition of "contiguous" to "place distant lakeshore property owners at risk of being annexed by neighboring municipalities." Id. at 529. The supreme court's treatment of the annexed peninsula as a "distant lakeshore" is consistent with Wisconsin common law, set forth above, providing that lake beds are owned by the state. Moreover, no one in Town of Delavan suggested that the properties met under the lake. Rather, the annexing municipality unsuccessfully argued that the lake should be treated as a "navigable highway," like the road in Town of Lyons. Town of Delavan, 176 Wis. 2d at 528.

¶ 19. We find no authority for the proposition that a river running over the point of contact renders properties non-contiguous, and there is nothing in the record to suggest that the Black River is anything but a river at the points in controversy. Therefore, we find that the property of the City meets the annexed properties at the center of the riverbed of the Black River. It follows that the annexed properties are "contiguous" to the City within the meaning of Wis. Stat. § 66.021(2). We reverse the trial court's order granting the Town's motions for summary judgment and remand for further proceedings consistent with this opinion.

By the Court. — Order reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. The statute at issue was renumbered in part, effective January 1, 2001. Wisconsin Stat. § 66.021(2) is now designated Wis. Stat. § 66.0217(3). Wis. Stat. Ann. § 66.021 (West Supp. 2000).

       The parties suggest that the width of the Black River in the relevant geographic area is somewhere between 400 and 1000 feet wide. A scaled map in the record indicates it is approximately 800 feet wide.

       Former Wis. Stat. § 66.021 reads in relevant part:
      (2) Methods of annexation. Subject to s. 66.023(7), territory contiguous to any city or village may be annexed thereto in the following ways:
      (a) Direct annexation. A petition for direct annexation may be filed with the city or village clerk if it has been signed by either of the following:
      1. A number of qualified electors residing in the territory subject to the proposed annexation equal to at least the majority of votes cast for governor in the territory at the last gubernatorial election, and either of the following:

        a. The owners of one-half of the land in area within the territory.
      b. The owners of one-half of the real property in assessed value within the territory.
      2. If no electors reside in the territory subject to the proposed annexation, by either of the following:
      a. The owners of one-half of the land in area within the territory.
      b. The owners of one-half of the real property in assessed value within the territory.

       Appeal nos. 00-2755 to 00-2771.


author: ROGGENSACK, J. DYKMAN, J.

text:
    J. Marshall Osborn and Center for Equal Opportunity, Plaintiffs-Respondents-Cross-Appellants, v. Board of Regents of the University of Wisconsin System, Defendant-Appellant-Cross-Respondent.

    Court of Appeals

      No. 00-2861.

      Submitted on briefs April 18, 2001. —
    Decided August 30, 2001.

    2001 WI App 209
    (Also reported in 634 N.W.2d 563.)

      On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of James E. Doyle, attorney general, and Alan Lee, assistant attorney general.
    On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the brief of Daniel Kelly of Reinhart, Boemer, Van Deuren, Norris & Rieselbach, S.C. of Milwaukee.

      Before Dykman, Roggensack and Deininger, JJ.

       Petition to review granted 11-27-01.

   ROGGENSACK, J.

¶ 1. J. Marshall Osborn and the Center for Equal Opportunity made public record requests to the University of Wisconsin System for records of applicants to its campuses and two graduate schools. The circuit court granted the requests for records of those applicants who had not enrolled at the University, but it denied the requests for those who had matriculated, including a request by Osborn that personally identifiable information be redacted from their records prior to production. The University appealed, and Osborn cross-appealed. Because we have concluded that all the records sought are education records for which 20 U.S.C. § 1232g and public policy prohibit disclosure and because the University is not required to create records to satisfy Osborn's request, we reverse the order to provide records of applicants who did not enroll and affirm the circuit court's decision to refuáe to direct the University to create new records for the applicants who did enroll.

BACKGROUND

¶ 2. This appeal arises out of public record requests directed to the University of Wisconsin System pursuant to Wis. Stat. § 19.35 (1999-2000) which sought records relating to applicants for admission to eleven campuses in the University System, the University of Wisconsin Law School and the University of Wisconsin Medical School for 1993 to 1999. It is asserted that the requests were made to facilitate the study of the effects of race, ethnicity, immigration and other factors on the University's admission decisions. Osborn also planned to distribute the information received to media, public officials and the public.

¶ 3. The University responded by providing more than 390 pages of records to Osborn, but it did deny some requests. In part, the denials were based on the University's not maintaining the information requested, and in part on the University's determination that it was prohibited from disclosing the requested records for the following reasons: (1) the University's obligations in regard to the requested records under the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g, as amended; (2) the public interest in maintaining the privacy and reputational interests of the enrollees and applicants for admission outweighs the public interest in disclosure; and (3) the lack of a requirement to create new records in order to satisfy Osborn's requests.

¶ 4. In an attempt to compel the production of the requested records, Osborn brought a mandamus action in the circuit court. The court sustained the University's determination that 20 U.S.C. § 1232g prohibited it from disclosing the records for those applicants who did enroll in the University and that it was not required to create new records to satisfy Osborn's requests. The court also held that neither federal nor state law applied to records of those applicants who had not matriculated at the University because they were not "students" under those laws, and it ordered the production of their records. The circuit court did not conduct a balancing of the applicants' privacy and reputational interests with the public's interest in disclosure to determine whether, on balance, public policy favored access to or denial of the records. The University appeals the order directing it to produce the unen-rolled applicants' records, and Osborn cross-appeals the court's refusal to order production of the records of those applicants who did matriculate, redacted to remove personally identifiable information.

DISCUSSION

Standard of Review.

¶ 5. Whether a circuit court's order is final is a question of law, which we review de novo. Fredrick v. City of Janesville, 92 Wis. 2d 685, 688, 285 N.W.2d 655, 657 (1979). We also review as a question of law whether federal or Wisconsin statutes were properly applied to the undisputed facts before us. State ex rel. Blum v. Board of Educ., Sch. Dist. of Johnson Creek, 209 Wis. 2d 377, 381, 565 N.W.2d 140, 142 (Ct. App. 1997). Additionally, the application of the balancing test to a request for access to public records presents a question of law, which we decide independently of any action or inaction by the circuit court. Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis. 2d 768, 784, 546 N.W.2d 143, 149 (1996).

Finality.

¶ 6. Osborn contends that the circuit court's order is not final because the court did not know whether certain records existed in the form requested, and the court did not rule on the sufficiency of the law school's response. He argues there were factual and legal questions that remained unresolved; therefore, this appeal should be dismissed. The University counters that, notwithstanding those concerns, the court's decision covered all factual alternatives and legal questions. Therefore, the decision resolved all issues relating to what information the University was required to provide or not provide, which caused the circuit court's order to be a final order.

¶ 7. Only final orders may be appealed as of right. Wis. Stat. § 808.03(1). The test for whether an order of a circuit court is final is whether the court contemplated that it be final at the time of entry of the order. Fredrick, 92 Wis. 2d at 688, 285 N.W.2d at 657. Here, the circuit court decided that the University was not to fulfill the objected-to requests for any student who enrolled at the University and that it was required to provide those records for applicants who did not enroll. It also decided that the University was not required to create records to satisfy Osborn's requests. That it was unknown whether the University maintained a certain type of record is of no consequence because, if it did and the court ordered its production, the University was obliged to comply, and if the record did not exist, obviously the University could not comply. The circuit court also applied its order to the law school, which had responded but which response the court had not had the opportunity to review. Therefore, its order addressed each item in controversy in a way that established the rights of the parties to the mandamus action. Accordingly, we conclude it was a final order.

The Public Records Requests.

1. General Principles.

¶ 8. Upon a proper written request, a requester has the statutory right to inspect records kept by state agencies. Wis. Stat. § 19.35(1). Wisconsin courts have long recognized that records of government agencies should be open and available to the public as a necessary component to maintaining an informed electorate in a representative form of government. Wis. Stat. § 19.31; Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 155, 469 N.W.2d 638, 642 (1991). The Wisconsin Supreme Court has held that:

[T]he 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.

Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682, 687 (1984). However, the open records laws are not without limits, particularly when personally identifiable information bearing on privacy and reputational interests is sought. Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of Sch. Directors, 227 Wis. 2d 779, 786, 596 N.W.2d 403, 406 (1999). Additionally, certain records which are specifically exempted from disclosure by state or federal law or which are authorized to be exempted from disclosure by state law need not be produced. Wis. Stat. § 19.36(1).

¶ 9. A written request for public records that has been denied in whole or in part by a state agency is brought before the circuit court by an action for mandamus. Wis. Stat. § 19.37. On appeal of a circuit court's order in such an action, we engage in a step-by-step analysis to determine whether records have been appropriately denied or provided. Wisconsin Newspress, 199 Wis. 2d at 784, 546 N.W.2d at 149. First, we decide whether the custodian's denial of access was made with the requisite specificity. Id. Second, we determine whether the stated reasons were sufficient for denial or an order directing access. Id. In regard to that second step, we also examine whether the circuit court made a factual determination based on the evidence of record, unless the facts are undisputed, whether the requested documents implicated a public interest in secrecy if so asserted by the custodian and, if they do, whether those interests outweigh the public's interest in access to the records. Id. However, if the information requested is specifically exempted from disclosure by a statute, then there is no need for the custodian to weigh competing public interests, as the legislature has already done so by the statutory exemption. Blum, 209 Wis. 2d at 387, 565 N.W.2d at 145.

¶ 10. Here, one of the University's bases for objection was its obligation under 20 U.S.C. § 1232g to maintain the privacy of these records. That is an objection made with the requisite degree of specificity. Rathie v. Northeastern Wisconsin Technical Inst., 142 Wis. 2d 685, 687, 419 N.W.2d 296, 297 (Ct. App. 1987). Therefore, we next examine the sufficiency of that basis for denial. Wisconsin Newspress, 199 Wis. 2d at 784, 546 N.W.2d at 149.

2. Nature of Records Sought.

¶ 11. The records subject to the appeal and cross-appeal are those in the possession of the University for two classes of applicants for admission: those who did not enroll and those who did. Federal law proscribes access to records maintained by an educational institution if they are "education records." 20 U.S.C. § 1232g. Therefore, in order to analyze the records at issue here, our first determination must be whether the records are education records under federal law. The facts relevant to this determination are undisputed; therefore, we are presented with a question of law. Boutelle v. Chrislaw, 34 Wis. 2d 665, 673, 150 N.W.2d 486, 490 (1967).

¶ 12. FERPA applies to all educational agencies and institutions, which include high schools, post-secondary institutions and educational agencies, that may receive money under a program administered by the United States Department of Education. 34 C.F.R. §§ 99.1 and 99.3 (2000). The Secretary of the Department is charged with enforcing its provisions. 20 U.S.C. § 1232g(f). The Act benefits parents and students in regard to their interests in "education records," and it gives parents and students certain rights of access, notice and privacy with regard to those records. In this decision, we address only the privacy facet of the Act. 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 educational records (or personally identifiable information contained therein other than directory information ...) of students without the written consent.. ..

20 U.S.C. § 1232g(b)(l). There are certain exceptions to this prohibition, but none that are relevant here.

¶ 13. The Secretary has promulgated regulations to implement the Act. The regulations define "education records" as follows:

Education records, (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.
(Authority: 20 U.S.C. 1232g(a)(4))

34 C.F.R. § 99.3. The Act defines a "student" as "any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution." 20 U.S.C. § 1232g(a)(6). In order to implement this provision and explain in which educational agencies or institutions a person may have the status of "student," the Secretary promulgated the following definition:

Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.
(Authority: 20 U.S.C. 1232g(a)(6))

34 C.F.R. § 99.3. Therefore, past, as well as present, relationships can form the basis for student status under FERPA.

¶ 14. The circuit court determined that those applicants who had not enrolled in the University could not be students under the Act, and therefore, their records were not "education records" for which .protection is afforded. However, it relied on a definitional limitation of who is a student which was less understandable and which no longer applies. The current regulations define a student as, "any individual who is or has been in attendance at an educational agency or institution." 34 C.F.R. § 99.3 (emphasis added). In so doing, it causes us to focus on the relationship of the individual whose records are at issue to the entity that created the records when the records were created. This permits us to determine the nature of the physical documents that have been created. Here, the records of a high school student were education records when the high school created them. In a like manner, the records of a post-secondary student were education records when they were created by the post-secondary institution that the individual attended. Additionally, those who took the standardized tests Osborn seeks were students "in attendance at" an educational agency when they took the examinations.

¶ 15. Once created by an agency or institution while an individual is a student at that agency or institution, the records become "education records" within the Act. Nothing in the Act causes a change in the nature of those records. They are confidential education records when the educational agency or institution where the student is in attendance creates them, and they remain confidential in the hands of an educational institution that later receives them. To clearly demonstrate this, the Secretary promulgated rules addressing the Act's contemplation of record transfers from one educational institution to another. See 34 C.F.R. §§ 99.31, 99.33, 99.34. The Secretary's regulations, which specifically prohibit "redisclosure" by a party that did not create the record without the prior consent of the parent or student, confirm that the nature of education records remains unchanged in the hands of the recipient. 34 C.F.R. § 99.33(a)(1). As the supreme court noted in Milwaukee Teachers', "The key to determining the status of records under the open records law is the nature of the records, not their location." Milwaukee Teachers', 227 Wis. 2d at 792, 596 N.W.2d at 409. Therefore, we conclude that the effect of the definition of student, which includes those individuals who are or who have been in attendance at any educational agency or institution, when combined with the prohibition against redisclosure, ensures that education records already created will continue to be protected and used only for the purpose for which they were given to a third party. 34 C.F.R. § 99.33; 53 Fed. Reg. 11,942, 11,951 & 11,954 (Apr. 11, 1988).

¶ 16. Here, the records of non-enrolled applicants to the University were created by a high school, by a post-secondary school or by an educational testing agency and sent to the University for its use. They relate to students who were "in attendance" at those schools or agencies when the records were created. Therefore we conclude that the records transferred to the University from another educational institution or agency are education records under the Act while in the hands of the University. As such, they may be used only for those purposes for which they were transferred to the University: evaluations of applications for admission. 34 C.F.R. § 99.33(a)(2). Any other use, such as those contemplated by Osborn, is prohibited under the Act unless the prior written consents of the applicants are obtained. 34 C.F.R. § 99.33(e).

¶ 17. Furthermore, we are not persuaded that United States v. Brown Univ., No. Civ. A. 91-3274, 1992 WL 2513 (E.D. Pa. Jan. 3, 1992), or any other out-of-state case cited to us, has any relevance to the questions with which we are presented. Brown, an opinion which we note is unpublished, opined that the term "student" was not defined differently in different parts of the Act because there was no legislative history to support such a view. To some extent we agree with that view because we do not conclude that student is "defined differently" in different sections. However, "student" is qualified by different modifiers in various sections of the C.F.R., as explained by the Secretary's publication in 53 Fed. Reg. 11,942 et seq., and those modifiers affect our opinion as well as bear upon the other two facets of the Act, access and notice, which we do not address. Therefore, because the records Osborn requested are specifically exempted from disclosure by federal law, the University is not required to produce them. Wis. Stat. § 19.36(1). Additionally, even though we have concluded that the University lawfully denied access to the requested education records under § 19.36(1), nondisclosure of those records was also properly denied "by virtue of the significant public policy inherent in the federal statute." Rathie, 142 Wis. 2d at 690, 419 N.W.2d at 299.

3. Public Policy.

¶ 18. We concluded in Rathie that FERPA was both a source and an indication of the public policy establishing "an overriding public interest in preserving privacy of student education records." Id. After considering the nature of the education records requested and their coverage under the federal Act, we concluded that "unrestricted third-party access . . . would directly undercut the public policy inherent in [FERPA]." Id. at 693, 419 N.W.2d at 300. We also concluded that the public interest in maintaining the privacy of education records outweighs any public interest in their disclosure. Id. at 694, 419 N.W.2d at 300-01.

¶ 19. The very same education records are being sought for students who enrolled at various University of Wisconsin System schools and programs as for the applicants who did not enroll. We held in Rathie that the public policy exemplified by FERPA renders the records of enrolled students inaccessible under the Wisconsin Open Records law, regardless of whether the federal Act constitutes a direct statutory exemption. Id. at 689-90, 419 N.W.2d at 298-99. The Rathie analysis and holding is an alternative basis for concluding that the University properly denied access to the education records of non-enrollees.

¶ 20. If the issue is approached as a matter of public policy as opposed to one of statutory interpretation, it would make no sense to conclude that the very same records of a student who applied to both UW-Oshkosh and UW-Whitewater, but enrolled at only the latter, could be obtained from the first institution but not the second. Additionally, we are aware of no public policy justification for having unsuccessful applicants for admission to University of Wisconsin schools or programs forfeit their right to the privacy of education records submitted during the application process. Therefore, even if FERPA were not to provide a specific statutory exemption for the nondisclosure of non-enrollees' education records submitted in the application process, as well as enrollees1 education records, the public policy considerations which drove our decision in Rathie provide an alternate basis for denying access.

¶ 21. The University also argues in its brief in chief that, even if the records sought were not education records under federal law, they are pupil records protected from disclosure by confidentiality provisions in Wis. Stat. § 118.125. Because we have resolved this question under federal law and under public policy considerations, it is not necessary for us to address the question under § 118.125. Accordingly, we reverse the order of the circuit court that required production of the records of applicants who did not enroll.

4. Record Redaction.

¶ 22. Osborn contends in the cross-appeal that even if the University is not required to produce the records he seeks in their current form, Wis. Stat. § 19.36(6) requires the University to redact the applicants' records to remove personally identifiable information and then produce them. The circuit court concluded that doing so would be tantamount to creating new records, which the University was not required to do.

¶ 23. Wisconsin Stat. § 19.36(6), on which Osborn relies, states in relevant part:

Separation of infoemation. If a record contains information that is subject to disclosure under s. 19.35(l)(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.

We conclude that § 19.36(6) does not require the University to produce the records after redacting personally identifiable information.

¶ 24. Our analysis of a similar request in Blum controls the outcome here. Blum had sought her own interim grades and those of another high school student. We examined the protection given to those records under Wis. Stat. § 118.125 and concluded that once a record has been afforded confidentiality under § 118.125 nothing in that statute suggested that the record was "exempted from the confidentiality requirement if released under a guise of anonymity." Blum, 209 Wis. 2d at 384-85, 565 N.W.2d at 144. Here, we have concluded that all of the requested records are afforded privacy protection by virtue of 20 U.S.C. § 1232g and the public policy evidenced therein; therefore, they are similarly positioned to those pupil records protected by § 118.125 which we examined in Blum. As with § 118.125, there is nothing in 20 U.S.C. § 1232g that suggests that education records are exempted from the students' right to have them remain confidential if they are released with the students' names redacted. The nature of the records remains the same. They cannot be released upon Osborn's request without the written consent of the individual applicants. Additionally, because the records Osborn seeks are not "subject to disclosure" under Wis. Stat. § 19.35(l)(a), pursuant to the exemption of Wis. Stat. § 19.36(1) as required by § 19.36(6), the University is not required to review each education record and remove part of it. Accordingly, we affirm the circuit court's decision on the cross-appeal.

CONCLUSION

¶ 25. Because we have concluded that all the records sought are education records for which 20 U.S.C. § 1232g and public policy prohibit disclosure and because the University is not required to create records to satisfy Osborn's request, we reverse the order to provide records and affirm the circuit court's decision refusing to direct the University to create new records for the enrollees. Therefore, the portion of the order directing disclosure is reversed; the portion of the order directing non-disclosure which is the subject of the cross-appeal is affirmed.

By the Court. — Order affirmed in part; reversed in part.

DYKMAN, J.

¶ 26 (dissenting). This is an open records case. In a unique and forceful declaration, the legislature has emphatically declared that open records are the rule in Wisconsin, and that judges should order records kept secret only in rare circumstances:

Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it 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.... To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. 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 (1999-2000).

¶ 27. A party seeking to keep a public record secret must rebut the strong presumption of disclosure. Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 154 Wis. 2d 793, 797-98, 453 N.W.2d 922 (Ct. App. 1990) rev'd on other grounds, 162 Wis. 2d 142, 469 N.W.2d 638 (1991). This places the burden on the record custodian to show why the records should be kept secret. In C.L. v. Edson, 140 Wis. 2d 168, 182, 409 N.W.2d 417 (Ct. App. 1987), we made this specific:

Here, the original parties wrongly attempt to place the burden on the newspaper to show why the documents should be opened. Once the newspaper has demonstrated a sufficient interest and has been allowed to intervene, the burden lies with the original parties to rebut the strong presumption to the contrary.

"In short, there is an absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary." Estates of Zimmer, 151 Wis. 2d 122, 132, 442 N.W.2d 578 (Ct. App. 1989) (internal quotations omitted).

¶ 28. What the open records law, C.L., and Estates of Zimmer require has been turned upside-down by the majority opinion. The majority requires Osborn to prove that the records at issue were created by an educational agency or institution that did not have funds available to it from the United States Department of Education. Majority at ¶ 12 n.4. But Osborn did not have to raise or prove anything. The burden was on the Board of Regents to show that both the high schools and the entities preparingACT, SAT, LSAT and MCAT tests received funds from the United States Department of Education. Since there is no record of where those entities received their funding, the only possible conclusion is that the records custodian has failed to show that the entities enjoy the protection of 34 C.F.R. §§ 99.1 and 99.3 (2000). Without that protection, the Board of Regents must release the records of the non-enrolled students' high school records and ACT, SAT, LSAT and MCAT tests.

¶ 29. The majority suggests that it can place the burden on Osborn rather than on the Board of Regents because federal regulations provide that the Secretary of the Department of Education makes funds available to public high schools, public colleges and educational testing organizations. Were this the test, I would agree with the majority. And at first glance, it would seem that "funds made available" is the test. 34 C.F.R. § 99.1(a) (emphasis added) provides in part: "Except as otherwise noted in § 99.10, this part applies to án educational agency or institution to which funds have been made available under any program administered by the Secretary. ..." But there is a definition of "funds made available" found in 34 C.F.R. § 99.1(c) (emphasis added), which reads:

The Secretary considers funds to be made available to an educational agency or institution if funds under one or more of the programs referenced in paragraph (a) of this section— (1) Are provided to the agency or institution by grant, cooperative agreement, contract, sub-grant, or subcontract; or (2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes....

¶ 30. Thus, what appears at first glance to be a "funds made available" test is in reality a "funds provided" test. And that is the problem which forces the majority to shift the burden in this open records case from the Board of Regents to Osborn. We know that the College Board, which administers SAT tests, receives funds from the Secretary of the Department of Education, and thus SAT records are protected under FERPA. The record is silent as to whether the Secretary of the Department of Education provided funds to all of the other educational agencies and institutions whose records Osborn requested. It is the Board of Regents' obligation to show that its records should be kept secret. It has failed to do so. The result should be an affirmation of the trial court's conclusion recognizing that fact.

¶ 31. But I also disagree with other conclusions in the majority opinion. By enacting FERPA, Congress gave students protection from the dissemination of their student records. However, Congress included an exception in its definition of "student." A student does not include a person who has not been in attendance at an agency or institution which maintains the student's education records. 20 U.S.C. § 1232g(a)(6).

¶ 32. Somehow, the majority puts this exception to the definition of "student" together with another definition of "student" found in a regulation promulgated by the Secretary of the Department of Education, and comes up with a definition of "student" as "those individuals who are or who have been in attendance at any educational agency or institution." Majority at ¶ 15. In my view, this includes most inhabitants of the United States, with the possible exception of totally home-schooled persons. I cannot accept this broad definition as correct when Congress has specifically excepted from the definition of "student," persons who have not been in attendance at the institution maintaining the student's education records.

¶ 33. Perhaps the majority feels that the Secretary of the Department of Education could somehow massage 20 U.S.C. § 1232g(a)(6) and remove Congress's specific exemptions from it. But this is not the federal rule and it is not the rule in Wisconsin. See Koshland v. Helvering, 298 U.S. 441, 447 (1936), Dierson v. Chicago Car Exchange, 110 F.3d 481, 486 (7th Cir. 1997), Oneida County v. Converse, 180 Wis. 2d 120, 125, 508 N.W.2d 416 (1993). There is nothing ambiguous about the phrase "but does not include a person who has not been in attendance at such agency or institution." There is no way to read that phrase and conclude that Congress really intended to include within the definition of "student" a person who has not been in attendance at an institution.

¶ 34. The majority suggests that ambiguity exists because the statute does not distinguish between a person's past attendance and present attendance at an institution. I agree that the statute does not make that distinction, but the distinction is irrelevant. It just does not matter for FERPA's purposes whether a person who never attended an institution did not attend in the past or does not attend now. In either case, the non-student was or is a non-attendee, and therefore not entitled to FERPA protection. "Has not been in attendance" is a phrase contemplating the past. The past begins when an institution receives an open records request, and extends backwards in time. Persons who do not attend and have not attended an institution are not students at the institution whether one is discussing law, FERPA or common sense. And whether the person whose records are requested has been in attendance at the institution for seven years or one day is likewise irrelevant. Either way, the student "has been in attendance" at the institution and is entitled to FERPA protection.

¶ 35. Having concluded that Congress intended an exception for records of non-students, I also conclude that the public policy expressed in FERPA, including the exception I have already discussed, is that of a limited right to privacy. The exception is therefore also the policy to which Rathie v. Northeastern Wis. Tech. Inst. 142 Wis. 2d 685, 690, 419 N.W.2d 296 (Ct. App. 1987), deferred. The public policy described in Rathie was not public policy as determined by three appellate judges. Instead, it was the public policy the court of appeals found in FERPA relating to students who "were in attendance at" Northeastern Wisconsin Technical Institute. The supreme court has said as much. In Rice v. City of Oshkosh, 148 Wis. 2d 78, 435 N.W.2d 252 (1989), the court quoted Hengel v. Hengel, 122 Wis. 2d 737, 742, 365 N.W.2d 16 (Ct. App. 1985) and Borgnis v. Falk Co., 147 Wis. 327, 351, 133 N.W. 209 (1911): "When acting within constitutional limitations, the Legislature settles and declares the public policy of a state, and not the court." Rice, 148 Wis. 2d at 91.

¶ 36. The majority mistakenly concludes that Rathie holds that the public policy of FERPA is to make all student records confidential, whether or not the student is enrolled at the institution. It ignores the fact I conclude is dispositive: the records sought from the institution involved in Rathie were records of students enrolled there. Of course those records were protected by FERPA. But that in no way is a holding that records falling within the exception to FERPA's protection are also protected by FERPA. Appellate courts usually do not write opinions about fact situations having nothing to do with the case at hand. The majority is really substituting its own view of public policy for that of Congress, the very thing disapproved by Rice, Hengel and Borgnis.

¶ 37. I agree with the majority's conclusion that it will not address the Board of Regents' assertion that Wis. Stat. § 118.125 protects the sought-after records from disclosure. The Board of Regents did not use this statute as a reason for denying access to the non-students' records. The court explained this in Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979):

The duty of the custodian is to specify reasons for nondisclosure and the court's role is to decide whether the reasons asserted are sufficient. 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.

But I disagree with the majority's conclusion that the Board of Regents may not be compelled to redact personally identifiable information from the records sought. Wisconsin 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. Nor do I consider whether the redacted records will be of use to Osborn. The latter is not a matter covered by Wisconsin's open records law. See Kraemer Brothers, Inc. v. Dane County, 229 Wis. 2d 86, 102, 599 N.W.2d 75 (Ct. App. 1999).

¶ 38. Judges are required to make a public policy determination by balancing the policy considerations for and against disclosure. Breier, 89 Wis. 2d at 437-38. There is a strong public policy in favor of openness. Breier, 89 Wis. 2d at 439; Wis. Stat. § 19.31. Whether the Board of Regents does or does not use considerations of race, ethnicity, heritage and gender in admitting students to the University of Wisconsin is an important issue. It is a controversial issue, with persons of good faith asserting competing conclusions as to whether the University should or should not consider those factors. But to me, this is not an issue which should be kept secret from the people of the State of Wisconsin. Whatever the University does or does not do should be subjected to the sifting and winnowing process of which the University is rightfully proud. I find no policy favoring the non-disclosure of the type of information Osborn seeks. Accordingly, adhering to the requirement of Breier that I weigh the competing interests for and against disclosure, I conclude that public policy favors disclosure. Accordingly, I respectfully dissent from the majority's conclusion to the contrary.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted. Although the requests for information were made during 1998 and 1999 for applicants from 1993 to 1999, the current statutes are used for this opinion because no changes were made in the relevant provisions that would affect our decision.

       The applicants can be separated into two classes: those who did enroll and those who did not. Of the latter class, some were granted the opportunity to enroll but chose not to do so, and others were denied that opportunity.

       The records sought and refused were alleged to contain standardized test scores, grade point averages and high school or undergraduate class rank of each individual applicant. The requests also sought each applicant's extracurricular activities, preferred undergraduate areas of study, state of residence, location of residence within the state, race, sex and whether the applicant had a parent or another relative who was a graduate of the school for which admission was sought. Additionally, Osborn requested enrollees' first-year grade point averages, whether any enrollees were classified as remedial students, whether any enrollees were placed on academic probation the first year and whether the grade point averages of any enrolled applicants were "adjusted."

       Osborn did not argue, either before the circuit court or this court, that any record at issue was created by an educational agency or institution that did not have funds made available from the United States Department of Education and therefore would not be subject to FERPA. We assume it was not raised because it is not a contested issue. However, because this issue is the foundation of the dissent, we note that the Secretary does make funds available to public high schools and public colleges as well as to educational testing organizations. See 20 U.S.C. § 1400 et seq.; 42 U.S.C. §§ 2751-2756b; 34 C.F.R. §§ 673.1 and 675.1; 20 U.S.C. §§ 1070a-11 et seq.; 20 U.S.C. § 1070e; and 66 Fed. Reg. 20,440, 20,441 (Apr. 23, 2001). Additionally, the College Board's annual report shows funds received from the Department of Education. See http://www.coIlegeboard.org/pubaff/annrep0Q/annrep00.pfd.

       We cannot analyze the access and notice rights available to parents and students under the Act without facts in addition to those presented in this record.

       An older version of 34 C.F.R. § 99.3 provided the definition on which the circuit court relied:
      The term does not include an individual who has not been in attendance at an educational agency or institution. A person who has applied for admission to, but has never been in attendance at a component unit of an institution of postsecondary education (such as the various colleges or schools which comprise a university), even if that individual is or has been in attendance at another component unit of that institution of postsecondary education, is not considered to be a student with respect to the component to which an application for admission has been made.
      The definition applicable to the records sought here became effective forty-five days after its publication in 53 Fed. Reg. 11,942 (Apr. 11, 1988).

       The dissent asserts, "There is nothing ambiguous about the phrase 'but does not include a person who has not been in attendance at such agency or institution.' There is no way to read that phrase and conclude that Congress really intended to include within the definition of 'student' a person who has not been in attendance at an institution." We respectfully disagree. Whether the attendance spoken of in the statute is one that has occurred in the past or is presently occurring when the request for records is made is not unambiguously addressed by the statute. However, it is addressed by the Secretary of the Department of Education, who was designated by Congress to implement the Act.

       Under 34 C.F.R. § 99.1, an "educational agency" is included within FERPA if it "provides educational services" or "performs service functions for, public elementary, or secondary schools or post secondary institutions." This definition is broad enough to extend to the entities that prepare and administer standardized admissions tests such as the ACT, SAT, LSAT, and MCAT.

       Section 99.33 provides in relevant part:
      (a)(1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student.
      There are certain exceptions to this rule, but none that bear on the questions we must decide in this appeal. See, e.g., 34 C.F.R. § 99.31.

       Many of the cases cited to us, or which our research uncovered, were based on the obsolete definition of "student" cited above or upon incomplete research. See Tarka v. Franklin, 891 F.2d 102 (5th Cir. 1989) (holding 20 U.S.C. § 1232g provides no private right of action and employs an outdated definition of "student"); Norwood v. Slammons, 788 F. Supp. 1020 (W.D. Ark. 1991) (holding that requests for records of another must be denied and relying on the dicta in Tarka without even mentioning the C.F.R.); Lawson v. Edwardsburg Pub. Sch., No. 1:90-CV-68, 1990 WL 359811 (W.D. Mich. Nov. 14, 1990) (holding that a complaint which alleged that the school board had wrongfully said that Lawson had commenced a lawsuit against it did not state a claim under the Act); Lieber v. Board of Trs. of S. Illinois Univ., 680 N.E.2d 374 (Ill. 1997) (holding individuals who had been granted the privilege to enroll were not students between the time such privilege was granted and classes began, without any reference to the C.F.R. and the Secretary's implementation of the Act); and Carl v. Board of Regents of Univ. of Oklahoma, 577 P.2d 912 (Okla. 1978) (relying on a definition of "student" that does not apply to the records sought by Osborn).

       This was not a reason given by the University in its response to Osborn.

       Osborn repeatedly asserts that he seeks no "personally identifiable information," yet he ties his requests to each individual applicant rather than requesting a range of information for a group of applicants. For example, he requests, "The math and verbal scores achieved on the Scholastic Aptitude Test ("SAT") and the composite scores achieved on the American College Testing Assessment ("ACT") by each American Indian, Asian, black, Hispanic, and white, male freshman" (emphasis added).

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       The Board of Regents gave FERPA as a reason it would not release SAT test results, but did not prove at trial that the College Board received funds from the Department of Education. The majority has apparently taken judicial notice of the College Board's annual report. Although raising an issue for the first time on appeal is discouraged, Vollmer v. Luety, 156 Wis. 2d 1, 10-11, 456 N.W.2d 797 (1990), we may do so. Bartus v. DHSS, 176 Wis. 2d 1063, 1071, 501 N.W.2d 419 (1993). Therefore, if I agreed with the majority's interpretation of "student" under 20 U.S.C. § 1232g(a)(6), I would also agree with the majority that the College Board test results may be kept secret. But trying issues for the first time on appeal is inappropriate, and puts the court in the position of litigating for a party.