¶ 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).1
¶ 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 *981why 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).2 Without that protection, the *982Board 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....
*983¶ 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 *984excepted 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 *985institution 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 *986to 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).
*987¶ 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.
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 *982College 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.