(concurring in part, dissenting in part). Thomas J. Woznicki, an employee of the New Richmond School District, was charged with having consensual sex with a minor. The District Attorney dismissed the criminal case because he concluded he could not meet the burden of proving guilt beyond a reasonable doubt. Relying on the open records law, the father of the minor and the New Richmond School District sought release of Woznicki's personnel records (which had apparently been compiled by the District) and Woznicki's telephone records, both of which had been subpoenaed by the District Attorney in his investigation. The District Attorney's task was to assess whether the documents in question should be disclosed under Wisconsin's open record law.
I agree with the majority opinion that neither personnel records nor telephone records are categorically exempt from disclosure under Wisconsin's open records law, and I join that portion of the majority opinion which so holds. Just about three months ago this court held that the records of a school district involving a disciplinary action against a school district administrator were not exempt from the open records law and could therefore be released if the custodian of the record determined that disclosure was merited under *200the open records law.1 As the majority correctly observes, access to these records is determined by the record custodian through a case-by-case balancing of the public's right to inspect public records under the open records law and any potential harm to the public interest that might result from disclosure. State ex. rel. Youmans v. Owens, 28 Wis. 2d 672, 681-82, 137 N.W.2d 470 (1965).
I dissent from the remand to the circuit court for a determination of whether the custodian erred in deciding to open the personnel and telephone records at issue in this case. Today for the first time the court's decision requires a custodian to notify all persons whose reputational and privacy interests might be "implicated" by the release of a record. Today for the first time the court's ruling subjects a custodian's decision to release such records to judicial review. I conclude that for a number of reasons neither of these newly adopted rules is justified or warranted by Wisconsin's open records law.
First, the majority silently overturns precedent by granting a noncustodian the power to determine whether public records should be closed. Our prior cases recognize that only a legal custodian has the power to close records subject to judicial review.
Second, the majority's decision contravenes the language, spirit and purpose of the open records law, which states explicitly that "[e]xcept as otherwise provided by law, any requester has a right to inspect any record." Wis. Stat. § 19.35(1)(a) (1993-94).2 Nothing in the case law, the open records law or any other statute *201supports the majority's novel requirements of notification and subsequent judicial review when a custodian decides to release records implicating privacy and reputational interests. This court should not rewrite the open records statute. If the open records law is to provide that a court may assess privacy and reputa-tional interests after the custodian has decided to open the records, this significant change in the open records statute should be left to the legislature.
Third, the majority's broad and undefined invocation of "privacy and reputational interests" intrinsic to documents such as personnel records and telephone records could foreshadow a dramatic erosion of the open records law. Although its holding is ostensibly limited to records held by a district attorney, majority op. at 181, the reasoning of the majority opinion is directed to the custodians of all records rather than to a district attorney, the custodian in this case. See, e.g., majority op. at 185-92. The majority opinion's reasoning with regard to privacy and reputational interests would apply if, for example, the records in this case were in the possession of the school district rather than the district attorney. The location of the records should not be the determinative factor in applying the open records law. As the court explained in Nichols v. Bennett, 199 Wis. 2d 268, 274-75, 544 N.W.2d 428 (1996), "[fit is the nature of the documents and not their location which determines their status [under the open records law]. To conclude otherwise would elevate form over substance."
Fourth, the majority does not address the administrative difficulties that will accompany its prescribed *202procedure, and it leaves the circuit courts, which are assigned the unenviable task of implementing that procedure, neither instruction nor direction regarding how they should do so. If a custodian's decision to open records is challenged, years may pass before a final judicial decision is reached. Woznicki filed his objection in the circuit court on July 19, 1994. It has taken almost two years for a final decision to be reached on Woznicki's objection to the release of the records at issue.3
I agree with the majority that the protection of privacy and reputational interests not only goes to the heart of a system of government pledged to protect individuals, their freedoms, and their rights, but also plays an integral role in the balancing test prescribed by the open records law itself. But the majority's decision today neglects another core value in our system of government, one this state's open records law is specifically designed to preserve and promote: insuring that our government is open and accountable to the people it serves. As we stated in Nichols, "[t]he open records law serves one of the basic tenets of our democratic system by providing an opportunity for public oversight of the workings of government." Nichols, 199 Wis. 2d at 273 (citation omitted). Should we lose the ability to effectively monitor our government, those rights we cherish — including the right to privacy which the majority opinion intends to protect — would be imper-*203illed. In its decision today, the majority undermines the open records law and risks destroying the very interests it intends to save.
I.
Prior case law recognizes that the determination of whether a public record should be closed rests with the legal custodian of the record rather than with the general public or any individual. In State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983), the subject of the record at issue made the same argument advanced by the subject of the record at issue in this case: that because the open records law reflects a legislative policy to protect reputational and privacy interests, the custodian in charge of the records at issue could not release them. The court disagreed, pointing to the legislature's stipulation that the right to close a record is vested in the custodian rather than the subject of that record.
II.
Under Wisconsin's open records law, there is "a presumption of complete public access." Wis. Stat. § 19.31. Closing records "generally is contrary to the public interest," and access to records may be denied "only in an exceptional case." Id. As the court has stated, in applying this standard "the general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, *204or unless there is an overriding public interest in keeping the public record confidential."4
The majority searches in vain for law supporting its conclusion that notwithstanding this presumption, a custodian deciding to open records implicating an individual's privacy and reputational interests must not only provide that individual with notification but also subject that decision to judicial review.
The open records law itself does not support the majority's holding. It is true, as the majority observes, that Wis. Stat. § 19.35 points to exceptions to disclosure inscribed in the open meetings law, Wis. Stat. § 19.85, as indicative of those situations under which an exception to disclosure under the open records law might also be warranted. But Wis. Stat. § 19.35 cautions that such exceptions "may be used as grounds for denying public access to a record only if the authority or legal custodian . . . makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made." No such demonstration has been made by the district attorney, the custodian in this case.5
*205No case law requires a legal custodian to balance the public interest against any private interest such as the one identified by the majority today. The court's previous open records cases simply recognize that in balancing the public interest in opening a record and the public interest in keeping a record closed, a record custodian must incorporate an assessment of how opening a record would affect an individual's reputation because this "is a matter of public interest." Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 433, 279 N.W.2d 179 (1979).
Finding no support in either the open records law or this court's prior decisions interpreting that law, the majority attempts to bolster its holding by claiming that various provisions of the Wisconsin statutes "evince a specific legislative intent to protect privacy and reputation." Majority op. at 185-86. The statutes it cites, however, actually underscore the extent to which privacy and reputational interests must yield to satisfy the presumption of public access inscribed in the open records law.
Hence while it is true that Wis. Stat. § 895.50 creates a privacy right in Wisconsin for the first time, Wis. Stat. § 895.50(2)(c) expressly states that "[i]t is not an invasion of privacy to communicate any information available to the public as a matter of public record." Contrary to what the majority suggests, then, the legislature creating Wis. Stat. § 895.50 made clear that a person's individual right to privacy ends when the information is contained in a public record. See Newspapers, Inc. v. Breier, 89 Wis. 2d at 431 (noting that because of Wis. Stat. § 895.50(2)(c), it does not "appear that any right of privacy is afforded by state law" when *206public interests under the open records law are involved).
The majority also seeks support from Wis. Stat. § 103.13, which limits an employee's access to the employee's own personnel records, and Wis. Stat. § 230.13, which delineates certain categories of records which may be closed to the public. Neither statute, however, purports to require nondisclosure when an individual's privacy is threatened.
The Wisconsin Newspaper Association and the Wisconsin Freedom of Information Council as amici note in their brief to the court that Wis. Stat. § 103.13 confers upon employers a right to refuse inspection of personnel records under certain circumstances. Nothing in Wis. Stat. § 103.13 vests a right in employees to keep their records closed. Nor does Wis. Stat. § 103.13 prevent an employer from disclosing information in an employee's personnel file to either the employee or anyone else. The majority opinion ignores this distinction between what is permitted and what is required.6
Similarly, nothing in Wis. Stat. § 230.13 prevents disclosure of the records enumerated there; the statute simply authorizes nondisclosure. As the court of appeals stated when it had occasion to construe Wis. Stat. § 230.13, just because a custodian may keep a record closed does not mean that a custodian must do so. Milwaukee Journal v. UW Bd. of Regents, 163 Wis. 2d 933, 942 n.5, 472 N.W.2d 607 (Ct. App. 1991). Both "the intent of the legislature" and "the rule of the courts," stated the court of appeals, "is that exceptions to public disclosure are to be construed narrowly, and *207we see no indication in § 230.13(2) that it was intended to be a mandatory, rather than a permissive, exemption." Id.
I do not dispute that the statutes cited by the majority "evince a clear recognition of the importance the legislature puts on privacy and reputational interests of Wisconsin citizens." Majority op. at 187. Our case law recognizes that the protection of these interests is one of the factors to be incorporated when a custodian balances the public's interest in closing a record against the public's interest in access to and inspection of records. This court has not, however, recognized a protected right to privacy.7 Rather than *208recognizing or creating a common-law right of privacy, the court has consistently stated that "if the right is to be created, it should be done by the legislature." Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 396, 280 N.W.2d 129 (1979); Yoeckel v. Samonig, 272 Wis. 430, 433, 75 N.W.2d 925 (1956).8
*209The open records law cases cited by the majority reflect this limitation on the right to privacy in Wisconsin. None of these cases raises the issue of whether a custodian can be prevented from disclosing particular records. Instead, each case cited by the majority involves a situation in which a custodian sought to prevent disclosure of particular records, notwithstanding the presumption in favor of complete public access inscribed in the open records law. Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d 463, 516 N.W.2d 357 (1994) (underlying action initiated by petition for mandamus seeking disclosure of report);9 Breier, 89 Wis. 2d 417 (action arose out of request by the managing editor of The Milwaukee Journal for access to police records); Youmans, 28 Wis. 2d 672 (mandamus action brought by publisher of Waukesha Freeman sought papers held by the Waukesha mayor relating to alleged police misconduct); Village of Butler v. Cohen, 163 Wis. 2d 819, 472 N.W.2d 579 (Ct. App. 1991) (action arose when requestors asked for personnel files of police officers).
Such cases can be initiated in the first place because the open records law specifically authorizes a requester to bring an action for mandamus compelling *210a custodian to release a record. Wis. Stat. § 19.37. There is no comparable statute — and no comparable case law — authorizing an action by a person seeking to prevent rather than compel disclosure. Indeed, the cases relied upon by the majority emphasize that "public policy favors the right of inspection of public records and documents, and, it is only in the exceptional case that inspection should be denied." Youmans, 28 Wis. 2d at 683; see also Breier, 89 Wis. 2d at 426; Butler, 163 Wis. 2d at 825.
Implication alone serves as the foundation for the majority's holding, notwithstanding the admonition of the court in Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984): "It would be contrary to general well established principles of freedom-of-information statutes to hold that, by implication only, any type of record can be held from public inspection." Without support from either prior case law or the statutes, the majority crafts novel procedural hurdles for requesters and for custodians who decide to release records implicating privacy and reputational interests.
H-{ 1 — I HH
In an attempt to salvage its holding, the majority in the final paragraphs of the opinion turns its attention to the fact that the custodian of the records at issue in this case is a district attorney. Because of "the broad discretion afforded to district attorneys in gathering information during investigations," majority op. at 194-95, the majority reasons that records in a district attorney's possession represent especially suitable candidates for the new rules it announces today. Once again, however, the majority fails to support its argument.
*211First, the majority seeks support from our prior decisions in State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991) and Nichols. Both cases, however, involved challenges to a district attorney's power to close records, notwithstanding the open records law. While the court upheld a district attorney's power to keep records closed, it said nothing to suggest that a district attorney therefore must keep records closed. As is the case with its interpretation of Wis. Stat. § 230.13, the majority here confuses a discretionary power which allows a particular entity to withhold certain records with a nondiscretionary requirement that those records must be withheld from public view. Cf. Milwaukee Journal v. UW Bd. of Regents, 163 Wis. 2d at 942 n.5. It therefore extends Foust in ways the Foust decision itself neither contemplated nor discussed.
Despite the majority's intimation to the contrary, Foust neither rests upon nor concerns itself with the privacy or reputational concerns of the subject of a record. Instead, as the Foust court explained, the rationale for allowing a district attorney to refuse to disclose records is the "orderly administration of justice" and the "continuing cooperation of the populace in criminal investigations." Foust, 165 Wis. 2d at 435.10
*212Second, the majority asserts that "material gathered by prosecutors is sometimes highly personal and private and can include medical, psychiatric and psychological reports, as well as victims' statements." Majority op. at 194. This is both true and irrelevant. If such records are privileged because, for example, they involve patient-physician communications, their disclosure is already limited by statute11 — regardless of whether they are held by a district attorney. If, conversely, they are not privileged — as is the case with the personnel records at issue in this case — then the majority opinion hinges disclosure upon who the custodian is rather on the nature of the records themselves.
The records at issue in this case are records subpoenaed from the school district. They implicate the exact same reputational and privacy interests whether they are held by the school district or the district attorney. As the court stated in Nichols," [i] t is the nature of the documents and not their location which determines their status [under the open records law]. To conclude otherwise would elevate form over substance." Nichols, 199 Wis. 2d at 274-75.
IV.
Finally, the majority does not even hint at the difficulties that will be involved in implementing its holding. Today's opinion requires a district attorney to notify all individuals whose privacy and reputational interests might be implicated by a particular disclosure and then to allow "a reasonable amount of time for the individual[s] to appeal the decision." Majority op. at *213193. The majority makes no effort to define the individuals whose privacy and reputational interests are "implicated" by a record. For example, in the case of records pertaining to lobbying activities, numerous individuals who are not subjects of an investigation nevertheless may have privacy interests "implicated" by such an investigation. The majority also provides no assistance to record custodians, record subjects, record requestors or the circuit courts regarding what constitutes a "reasonable" time in which the subject of a record might appeal a record custodian's decision to open a record.
In sum, the majority's opinion draws no support from the open records law or any other statute. It draws no support from the case law. It places record custodians in the impossible position of being sued when they deny access to records and also being sued when they decide to grant access to the same records. Most important, it threatens the integrity of the open records law which already accounts for privacy and reputational interests in the longstanding balancing test used under the law.
For the reasons set forth, I dissent.
I am authorized to state that Justice Ann Walsh Bradley joins this opinion.
Wisconsin Newspress, Inc. v. Sheboygan Falls Sch. Dist., 199 Wis. 2d 769, 777, 546 N.W.2d 143 (1996).
All further statutory references are to the 1993-94 volume of the Wisconsin Statutes.
*201The statutes provide numerous exceptions to the open records law. See, e.g., Wis. Stat. § 146.84(1)(c) (health care records); § 71.78 (tax records).
This delay contravenes the reasoning of Auchinleck v. LaGrange, 547 N.W.2d 587, 592 (1996). In Auchinleck, the court concluded that the 120-day governmental notice provisions set forth in Wis. Stat. § 893.80(1) were not applicable to the open records laws because "the language and the public policy of the open records and open meetings law require timely access to the affairs of government."
Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984) (emphasis added); see also Wisconsin Newspress, 199 Wis. 2d at 777.
In Wisconsin Newspress, 199 Wis. 2d at 780, this court emphasized that while Wis. Stat. § 19.35 directs a record custodian to consider the exceptions to complete public disclosure in Wis. Stat. § 19.85 when making a determination regarding whether disclosure is warranted, read together the sections "do not result in a clear statutory exception." Id. The statutes "simply require the custodian to pay proper heed to the expressed policies in allowing or denying public access to a record." Id. Hence the court made clear just a few months ago that whatever intent to protect privacy one might glean from the relation between Wis. Stat. § 19.35 and Wis. Stat. § 19.85 is insufficient *205to defeat the open records law's presumption in favor of complete public access.
Similarly, the Bilder court acknowledged that although custodians were empowered to close public records, they were not required to do so. State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 558, 334 N.W.2d 252 (1983).
See, e.g., Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 396, 280 N.W.2d 129 (1979) (prior case law indicates a refusal to recognize a right of action for violation of one's right to privacy); Yoeckel v. Samonig, 272 Wis. 430, 433, 75 N.W.2d 925 (1956) (same); see also Michael J. Fitzgerald, Public Access to Law Enforcement Records in Wisconsin, 68 Marq. L. Rev. 705, 725 (1985) (noting that state law does not afford an individual a right to privacy in records).
In Paul v. Davis, 424 U.S. 693 (1976), the United States Supreme Court declined the invitation to extend a constitutional right to privacy to records of official action. The defendant had claimed constitutional protection against the disclosure of his arrest on a shoplifting charge. Characterizing the alleged privacy right at stake as "very different" from "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education," the Court noted that none of its substantive privacy decisions had upheld "anything like" the defendant's claim "that the State may not publicize a record of an official act such as an arrest." Paul v. Davis, 424 U.S. at 712-13.
Quoting language in its previous decision in Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971), stating that "notice and an opportunity to be heard are essential" when "a person's *208good name, reputation, honor, or integrity is at stake because of what the government is doing to him," the Davis Court rejected as overly broad the opportunity to read this language "to mean that if a government official defames a person, without more, the procedural requirements of the Due Process Clause of the Fourteenth Amendment are brought into play." Davis, 424 U.S. at 708. Instead, the Court stated, the language " 'because of what the government is doing to him' [in Constantineau] referred to the fact that the governmental action taken in that case deprived the individual of a right previously held under state law — the right to purchase or obtain liquor in common with the rest of the citizenry." Id. When no such state law and corresponding right exists, held the Court, reputational interests are "neither 'liberty' nor 'property' guaranteed against state deprivation without due process of law." Id. at 712; see also Siegert v. Gilley, 500 U.S. 226, 234 (1991) (holding that plaintiffs due process rights had not been violated when his government employer wrote an allegedly defamatory letter to a prospective employer because, under Davis, there is a "lack of any constitutional protection for the interest in reputation"); Weber v. City of Cedarburg, 129 Wis. 2d 57, 73, 384 N.W.2d 333 (1986) (citation omitted) ("Reputation by itself is neither liberty nor property within the meaning of the due process clause of the fourteenth amendment. Therefore, injury to reputation alone is not protected by the Constitution."); State v. Hazen, 198 Wis. 2d 554, 561, 543 N.W.2d 503 (Ct. App. 1995)("state actions that injure a person's reputation alone do not constitute a deprivation of life, liberty or property necessary to invoke the protection of the due process clause").
The subsequent enactment of Wis. Stat. § 895.50 did create such a right. As I have indicated above, however, the *209legislature carefully and explicitly insured that this limited statutory right would neither impede nor trump the presumption of complete public access inscribed in the open records law.
The specific issue presented in Armada concerned whether a party could intervene on the side of a custodian seeking to prevent disclosure. As the court stated, "[t]he sole issue on review is whether [the petitioner] has a right to intervene . . . under sec. 803.09(1)," the intervention statute. Armada, 183 Wis. 2d at 470. "The issue before us," the court proceeded to state, "does not involve a determination under the Open Records law." Id. at 473. Hence the majority's reliance on Armada is especially misplaced.
The Foust court made clear that insuring the anonymity of informants' statement is important because it helps preserve the public's willingness to cooperate in criminal investigations. Foust, 165 Wis. 2d at 435. Preserving the anonymity of informants' statements, then, represents a paradigmatic example of the third condition under which the general presumption in favor of complete public disclosure might be defeated: when "there is an overriding public interest in keeping the public record confidential." Hathaway, 116 Wis. 2d at 397. The major*212ity has failed to articulate a comparable rationale that might require nondisclosure of the records at issue in this case.
See ch. 905 (Evidence-Privileges). The physician patient privilege is incorporated within ch. 905 as Wis. Stat. § 905.04.