Feb. 14, 2011 – When a party seeks access to confidential pupil records to impeach a witness, the circuit court must determine the relevancy of the records to the witness’s testimony, and the testimony can occur in a deposition before trial.
A civil complaint alleged that a 15-year-old school bully urinated into a bottle and forced a five-year-old developmentally delayed female to drink it on the bus ride home from school.
The girl (plaintiff), through a guardian ad litem, sued the Northwood School District in Washburn County and Northwoods Bus Service, Inc., claiming both knew of the bully’s (respondent’s) behavioral problems and acted negligently for failing to protect the plaintiff.
The plaintiff sought copies of the respondent’s pupil records, but Northwood School District (district) refused to disclose them. The district claimed the pupil records were confidential under Wis. Stat. section 118.125(2), which provides that all pupil records maintained by a public school are confidential except in certain situations.
The Washburn County Circuit Court obtained the records for in-camera inspection pursuant 118.125(2)(f), which determines that pupil records can be used “for purposes of impeachment of any witness who has testified in the action.”
The circuit court then ordered the records be released to the plaintiff because the plaintiff argued the pupil records were relevant to a witness’s credibility.
But the district argued that the circuit court did not address the relevancy of the records before ordering disclosure. In addition, the district argued that records may not be turned over until after witnesses have testified at trial.
The appeals court in Shirley Anderson v. Northwood School District, 2009AP1881 (Feb. 8, 2011), rejected the district’s argument that records cannot be disclosed until after a witness testifies at trial, but held that a circuit court must determine the relevancy of records to be disclosed. Thus, the appeals court reversed the circuit court order allowing disclosure to the plaintiff.
Responding to the district’s “trial testimony” argument, the court held that a witness who has been deposed “has testified in the action” under section 118.125(2)(f).
“Had the legislature intended the statute to apply only at a trial, it undoubtedly would have used that term,” wrote Judge Michael Hoover. Judge Hoover also said that accepting Northwood’s interpretation of the statute would cause a trial to become unmanageable.
But the appeals court also concluded that a circuit court “must consider a specific witness’s deposition testimony to determine whether each record might be relevant to the person’s credibility or competency.”
Thus, it was error for the circuit court do disclose all of the respondent’s pupil records without determining “whether any of the records were relevant and material to any witness’s credibility, the appeals court explained. The circuit court must provide a rationale for a disclosure of pupil records to a party, and the court here did not, Judge Hoover noted.
“The court’s gatekeeper role is to protect the privacy of the pupil whose records are sought, releasing only those records which may concern a specific witness’s credibility or competency,” Judge Hoover wrote.