(dissenting). Thirty years ago, the supreme court adopted a rule requiring custodians to give reasons for withholding government documents from public scrutiny. A police chief had refused an attorney's request for records of citations issued by a particular police officer, giving no reasons for that refusal. The court determined that the police chiefs failure to give specific reasons for refusing to release a public record required the release of that record whether or not adequate reasons might later be given:
No doubt a number of plausible and perhaps valid reasons for withholding these documents could have been specified and, if so specified, the trial court might after the determination outlined in [State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965)] have upheld the police chiefs determination. But no reason was given, and from the record it is obvious that no attempt was made by the chief of police or his representatives to comply with Youmans and its rationale.
We thus conclude, consistent with the admonition of Youmans, that where, as here, no specific reason was given for withholding a public record from inspection, the writ of mandamus compelling its production should issue as a matter of course.
Beckon v. Emery, 36 Wis. 2d 510, 518, 153 N.W.2d 501, 504 (1967).
*393This "matter of course" rule was expanded to include not only a custodian's failure to give reasons for withholding a public record, but a custodian's failure to give adequate reasons for withholding a public record:
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. Beckon, supra at 518, states, "[T]here is an absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary." (Emphasis supplied.)
Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179, 184 (1979).
Since Newspapers, Inc., this "matter of course" rule has been uniformly applied. No hint of the distinction made today by the majority has been suggested. See Chvala v. Bubolz, 204 Wis. 2d 82, 92, 552 N.W.2d 892, 896 (Ct. App. 1996); Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 160, 469 N.W.2d 638, 644 (1991); Milwaukee Journal v. Board of Regents, 163 Wis. 2d 933, 942 n.5, 472 N.W.2d 607, 612 (Ct. App. 1991); Pangman & Assoc. v. Zellmer, 163 Wis. 2d 1070, 1084-85, 473 N.W.2d 538, 544 (Ct. App. 1991); State ex rel. Richards v. Foust, 165 Wis. 2d 429, 439, 477 N.W.2d 608, 612 (1991); Fox v. Bock, 149 Wis. 2d 403, 416, 438 N.W.2d 589, 595 (1989); Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis. 2d 480, 483, 373 N.W.2d 459, 461-62 (Ct. App. 1985); Hathaway v. Joint Sch. Dist. No. 1, 116 Wis. 2d 388, 404, 342 N.W.2d 682, 690 (1984). Four of these cases are more recent than Mayfair, the case upon which the majority bases its conclusion that the "matter of course" rule is inapplicable to statutory open records exemptions.
*394Indeed, we have rejected the distinction the majority makes between records kept confidential by statute and those made confidential by use of the test which balances openness against harm. In Pangman & Assoc. v. Zellmer, 163 Wis. 2d 1070, 473 N.W.2d 538 (Ct. App. 1991), an attorney requested copies of the personnel files of nine police officers. Id. at 1075, 473 N.W.2d at 540. The records custodian refused to release performance and promotional reviews of the nine officers, citing several statutes as the reason for his refusal. Id. at 1083, 473 N.W.2d at 543. We rejected the citation of the statutes as an adequate response:
Because the custodian gave no reasons other than the employment of exemption statute sec. 19.85, Stats., we reject the trial court's finding that the denial of the disclosure of the performance/promotional records was stated with specificity. Mere recitation of the exemption statute is insufficient without providing an added public policy reason for dismissal.
Pangman, 163 Wis. 2d at 1083-84, 473 N.W.2d at 543.
We faced a similar situation in Munroe v. Braatz, 201 Wis. 2d 442, 549 N.W.2d 451 (Ct. App. 1996), and we came to the same conclusion. There, the records custodian denied an open records request because he felt that the harm resulting from the release of certain test scores outweighed the public's interest in those scores. Id. at 444-45, 549 N.W.2d at 452-53. Later, in court, the custodian relied upon several statutes making the test scores confidential. We said: "The department refers us to statutes .... As we have stressed above, our review must be based on the reasons stated by the custodian for denying access to the records, and Braatz's letter rejecting Munroe's request does not attempt to justify withholding the records for *395any [statutory] reason." Id. at 448, 549 N.W.2d at 454. We did not consider whether the statutes the custodian cited would have made the test scores confidential.
I also believe that the majority's conclusion is contrary to a second rule of Wisconsin's open records law. Neither this court nor counsel are to supply reasons that could justify a records custodian's inadequate response. In Tratz v. Zunker, 201 Wis. 2d 774, 781, 550 N.W.2d 141, 143-44 (Ct. App. 1996), we held:
If other facts exist which justify Zunker's conclusion that Tratz should not have access to the records he sought, she has not disclosed them, and neither this court nor her counsel may supply them. See Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis. 2d 480, 486, 373 N.W.2d 459, 463 (Ct. App. 1995) ("[I]t is not the trial court's nor this court's role to hypothesize the reasons for denying access or to consider reasons not asserted by the custodian.").
See also Nichols v. Bennett, 199 Wis. 2d 268, 276, 544 N.W.2d 428, 431 (1996); Munroe, 201 Wis. 2d at 448, 549 N.W.2d at 454.
I do not believe that it is possible to square the majority's conclusion with the rules set out in these cases. The Board of Education's response to Blum's open records request was that giving the requested information was a burden and that the information was immaterial and incomplete. The majority agrees that those reasons are insufficient to support a denial of the requested records. Thus someone, either counsel, the trial court or this court has hypothesized or considered a reason, to wit: § 118.125, STATS., to deny Blum's open records request.
Even were we writing on a clean slate, without the rules set out in Oshkosh Northwestern, Tratz, Munroe, *396Pangman and the other cases I have noted, I would not make the distinction made by the majority. I agree that Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 156-60, 469 N.W.2d 638, 643-45 (1991), gives two reasons for the rule that a records custodian must respond to an open records request with specificity. These reasons are: (1) to control arbitrary behavior by records custodians; and (2) to provide sufficient notice to requesters to enable them to challenge the denial and to provide a basis for judicial review.
I do not believe that these reasons are valid only if a custodian denies access on public policy grounds. We have seen an example of arbitrary behavior using statutory reasons in Pangman. There are at least 174 statutes and supreme court rules that exempt material from open records disclosure, and most are not found in Chapter 19 of the statutes.1 The majority's decision upholds the right of records custodians to respond with *397irrelevancies, leaving counsel or trial and appellate courts to discover which statutory exemption might be applicable. I conclude that this encourages arbitrary behavior by records custodians rather than discouraging it.
In addition, considering irrelevant responses as adequate surely does not enable a requester to challenge an open records denial and cannot help us to review the case. If a response of "burden on administrative staff, immateriality and incompleteness" is sufficient, what response is insufficient? I can think of nothing. Of course, if a court examines the list of statutory exemptions to the open records law and concludes that none apply, the custodian can be ordered to provide the records. But only after expense and frustration for everyone except the records custodian. I am unwilling to embark on this new venture.
I am sympathetic with the majority's concern that the failure of a custodian to comply with the requirement of specificity should not require a court to issue a writ of mandamus in the face of a statutory exemption to the open records law. The answer to this is twofold. First, both the legislature and Wisconsin's appellate courts have long ago concluded that the benefits of requiring a specific answer from a custodian outweigh the embarrassment or inconvenience of releasing a record that might have been kept secret. We have a policy of openness in government in Wisconsin. If we err on the side of openness, that error is consistent with this policy. Section 19.31, Stats., provides:
In recognition of the fact that a representative government is dependent upon an informed electo*398rate, 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 employes who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employes whose responsibility it is to provide such information. 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.
Second, courts often require litigants to identify the statute or theory of law upon which they rely. A failure to do so often results in waiver. Thus, though Chapter 893, Stats., sets out a variety of statutes of limitation and requires that actions shall be commenced within a scheduled number of years or be barred, a party may waive this statutory right by failing to timely raise it. Robinson v. Mount Sinai Med. Ctr., 137 Wis. 2d 1, 17, 402 N.W.2d 711, 717 (1987). This is true even though a defendant has a constitutional right to rely on a statute of limitation. Westphal v. E.I. du Pont de Nemours & Co., 192 Wis. 2d 347, 373, 531 N.W.2d 386, 395 (Ct. App. 1995). Our Constitutions grant significant rights to persons accused of crime, but the United States and Wisconsin Reports are filled with examples of the waiver of those rights by failure to assert them.
It is consistent with Wisconsin's doctrine of waiver to require a records custodian to specify the reasons why he or she is withholding access to a public record. *399It is also consistent with the waiver doctrine for a court to consider only asserted reasons when deciding whether public records should be kept secret. A court does not violate a statute of limitation when the statute is not timely brought to the court's attention. A court does not violate a defendant's constitutional rights by failing to consider a constitutional theory not cited or argued by the defendant. Nor does a court violate a statutory exemption to the open records law by examining only the reasons given by a custodian for nondisclosure.
After today, a school district that responds "forget it" to an open records request for pupil records will see that response affirmed on appeal, while the same response to a request for prison employees' addresses will result in an order directing the release of that information, notwithstanding that a proper response in the latter case would have led to the records being held confidential. See State ex rel. Morke v. Record Custodian, 159 Wis. 2d 722, 726, 465 N.W.2d 235, 236 (Ct. App. 1990). After today, records custodians need not concern themselves with replying to open records requests if they believe the record may be kept secret because of a statutory exemption. If a petition for a writ of mandamus is brought, the custodian's attorney can then search for reasons why the record should be kept secret. The result is that keeping government secret will be easier to accomplish, and litigation encouraged. Given the legislative directive found in § 19.31, STATS., I believe that courts should be developing the common law in favor of open government records, not secrecy.
The supreme court has said that we may not overrule our own published decisions. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246, 256 (1997). Nonetheless, I believe that we have done so today. I believe that *400the majority's distinction between statutory and common law exemptions to our open records law is unnecessary, and ultimately illusory. I therefore respectfully dissent.
For a small example: § 299.55, STATS., provides that government records relating to the regulation of used oil fuel facilities are subject to the open records law, but that under certain conditions, some of those records may become confidential. Section § 757.93, Stats., makes judicial commission proceedings confidential. Adoption records may not be disclosed except under certain circumstances. Section § 48.93(1d), Stats. A statement in a pardon application containing reference to the address of a victim is not subject to the open records law. Section § 304.10(3), Stats. Section 29.38(9), Stats., makes confidential certain records regarding the value or weight of clams and the location where they were collected. Reports and records of sexual contact by therapists are confidential and "are exempt from disclosure under s. 19.35(1)." Section 940.22(4)(a), STATS. Certain drafting records of the Legislative Reference Bureau are confidential. Section 13.92(1)(c), STATS. Section 93.50(2)(e), STATS., excludes from the open records law information and records obtained in farm mediation and arbitration. And some *397records collected by the State Historical Society are kept secret. Section 16.61(13)(d), STATS.