Archives
2001-2002 Wisconsin Statutes and Annotations
Public Records and Property
19.21-19.39
Note: These are current through November 30, 2002. This is unofficial text.
19.21 Custody and delivery of official property and records.
(1) Each and every officer of the state, or of any county, town, city,
village, school district, or other municipality or district, is the legal custodian of and
shall safely keep and preserve all property and things received from the officer's
predecessor or other persons and required by law to be filed, deposited, or kept in the
officer's office, or which are in the lawful possession or control of the officer or the
officer's deputies, or to the possession or control of which the officer or the officer's
deputies may be lawfully entitled, as such officers.
(2) Upon the expiration of each such officer's term of office, or whenever the
office becomes vacant, the officer, or on the officer's death the officer's legal
representative, shall on demand deliver to the officer's successor all such property and
things then in the officer's custody, and the officer's successor shall receipt therefor
to said officer, who shall file said receipt, as the case may be, in the office of the
secretary of state, county clerk, town clerk, city clerk, village clerk, school district
clerk, or clerk or other secretarial officer of the municipality or district,
respectively; but if a vacancy occurs before such successor is qualified, such property
and things shall be delivered to and be receipted for by such secretary or clerk,
respectively, on behalf of the successor, to be delivered to such successor upon the
latter's receipt.
(3) Any person who violates this section shall, in addition to any other liability
or penalty, civil or criminal, forfeit not less than $25 nor more than $2,000; such
forfeiture to be enforced by a civil action on behalf of, and the proceeds to be paid into
the treasury of the state, municipality, or district, as the case may be.
(4a) Any city council, village board or town board may provide by
ordinance for the destruction of obsolete public records. Prior to the destruction
at least 60 days' notice in writing of such destruction shall be given the historical
society which shall preserve any such records it determines to be of historical interest.
The historical society may, upon application, waive such notice. No assessment roll
containing forest crop acreage may be destroyed without prior approval of the secretary of
revenue. This paragraph does not apply to school records of a 1st class city school
district.
(4b) The period of time any town, city or village public record is kept before
destruction shall be as prescribed by ordinance unless a specific period of time is
provided by statute. The period prescribed in the ordinance may not be less than 2
years with respect to water stubs, receipts of current billings and customer's ledgers of
any municipal utility, and 7 years for other records unless a shorter period has been
fixed by the public records board unders. 16.61 (3) (e) and except as provided under sub.
(7). This paragraph does not apply to school records of a 1st class city school
district.
(4c)Any local governmental unit or agency may provide for the keeping and
preservation of public records kept by that governmental unit through the use of microfilm
or another reproductive device, optical imaging or electronic formatting. A local
governmental unit or agency shall make such provision by ordinance or resolution.
Any such action by a subunit of a local governmental unit or agency shall be in conformity
with the action of the unit or agency of which it is a part. Any photographic
reproduction of a record authorized to be reproduced under this paragraph is deemed an
original record for all purposes if it meets the applicable standards established in ss.
16.61 (7)and 16.612. This paragraph does not apply to public records kept by
counties electing to be governed by ch. 228.
(4cm) Paragraph (c) does not apply to court records kept by a clerk of circuit court
and subject to SCR chapter 72.
(5a) Any county having a population of 500,000 or more may provide by
ordinance for the destruction of obsolete public records, except for court records subject
to SCR chapter 72.
(5b) Any county having a population of less than 500,000 may provide by ordinance for
the destruction of obsolete public records, subject to s. 59.52 (4) (b) and (c), except
for court records governed by SCR chapter 72.
(5c)The period of time any public record shall be kept before destruction shall be
determined by ordinance except that in all counties the specific period of time expressed
within s. 7.23 or 59.52 (4) (a) or any other law requiring a specific retention period
shall apply. The period of time prescribed in the ordinance for the destruction of
all records not governed by s. 7.23 or 59.52 (4) (a) or any other law prescribing a
specific retention period may not be less than 7 years, unless a shorter period is fixed
by the public records board under s. 16.61 (3) (e).
(5d) 1. Except as provided in subd. 2., prior to any destruction of records
under this subsection, except those specified within s. 59.52 (4) (a), at least 60 days'
notice of such destruction shall be given in writing, to the historical society, which may
preserve any records it determines to be of historical interest. Notice is not
required for any records for which destruction has previously been approved by the
historical society or in which the society has indicated that it has no interest for
historical purposes. Records which have a confidential character while in the
possession of the original custodian shall retain such confidential character after
transfer to the historical society unless the director of the historical society, with the
concurrence of the original custodian, determines that such records shall be made
accessible to the public under such proper and reasonable rules as the historical society
promulgates.
2. Subdivision 1. does not apply to patient health care records, as defined in s.
146.81 (4), that are in the custody or control of a local health department, as defined in
s. 250.01 (4).
(5e) The county board of any county may provide, by ordinance, a program for the
keeping, preservation, retention and disposition of public records including the
establishment of a committee on public records and may institute a records management
service for the county and may appropriate funds to accomplish such purposes.
(5f) District attorney records are state records and are subject to s. 978.07.
(6) A school district may provide for the destruction of obsolete school
records. Prior to any such destruction, at least 60 days' notice in writing of such
destruction shall be given to the historical society, which shall preserve any records it
determines to be of historical interest. The historical society may, upon
application, waive the notice. The period of time a school district record shall be
kept before destruction shall be not less than 7 years, unless a shorter period is fixed
by the public records board under s. 16.61 (3) (e) and except as provided under sub.
(7). This section does not apply to pupil records under s. 118.125.
(7) Notwithstanding any minimum period of time for retention set under s. 16.61 (3)
(e), any taped recording of a meeting, as defined in s. 19.82 (2), by any governmental
body, as defined under s. 19.82 (1), of a city, village, town or school district may be
destroyed no sooner than 90 days after the minutes have been approved and published if the
purpose of the recording was to make minutes of the meeting.
(8) Any metropolitan sewerage commission created under ss. 200.21 to 200.65 may
provide for the destruction of obsolete commission records. No record of the metropolitan
sewerage district may be destroyed except by action of the commission specifically
authorizing the destruction of that record. Prior to any destruction of records
under this subsection, the commission shall give at least 60 days' prior notice of the
proposed destruction to the state historical society, which may preserve records it
determines to be of historical interest. Upon the application of the commission, the
state historical society may waive this otice. Except as provided under sub. (7),
the commission may only destroy a record under this subsection after 7 years elapse from
the date of the record's creation, unless a shorter period is fixed by the public records
board under s. 16.61 (3) (e).
History:
1971 c. 215; 1975 c. 41 s.
52; 1977 c. 202; 1979 c. 35, 221; 1981 c. 191, 282, 335; 1981 c. 350 s. 13; 1981 c. 391;
1983 a. 532; 1985 a. 180 ss. 22, 30m; 1985 a. 225; 1985 a. 332 s. 251 (1); Sup. Ct. Order,
136 Wis. 2d xi (1987); 1987 a. 147 ss. 20, 25; 1989 a. 248; 1991 a. 39, 185, 316; 1993 a.
27, 60, 172; 1995 a. 27, 201; 1999 a. 150 s. 672.
Sub. (1) provides that a police chief, as an
officer of a municipality, is the legal custodian of all records of that officer's
department. Town of LaGrange v. Auchinleck, 216 Wis. 2d 84, 573 N.W.2d 232 (Ct. App.
1997).
The department of administration probably has
authority under sub. (1) and s. 19.21 (2), 1979 stats., [now see 19.35] to provide a
private corporation with camera-ready copy of session laws that is the product of a
printout of computer stored public records if the costs are minimal. The state
cannot contract on a continuing basis for the furnishing of this service. 63 Atty.
Gen. 302.
Plans and specifications filed under s. 101.12 are
public records and are available for public inspection. 67 Atty. Gen. 214.
Under sub. (1), district attorneys must preserve
indefinitely papers of a documentary nature evidencing activities of prosecutor's office.
68 Atty. Gen. 17.
The right to privacy law, s. 895.50, does not
affect the duties of a custodian of public records under s. 19.21. 68 Atty. Gen. 68.
County with a population under 500,000 may destroy
obsolete case records maintained by the county social services agency under s. 48.59 (1).
70 Atty. Gen. 196.
A VTAE (technical college) district is a
"school district" under sub. (6). District may not maintain records on
microfilm. 71 Atty. Gen. 9.
(1) If any public officer refuses or neglects to deliver to his or her successor any official property or things as required in s. 19.21, or if the property or things shall come to the hands of any other person who refuses or neglects, on demand, to deliver them to the successor in the office, the successor may make complaint to any circuit judge for the county where the person refusing or neglecting resides. If the judge is satisfied by the oath of the complainant and other testimony as may be offered that the property or things are withheld, the judge shall grant an order directing the person so refusing to show cause, within some short and reasonable time, why the person should not be compelled to deliver the property or things.
(2) At the time appointed, or at any other time to which the matter may be adjourned, upon due proof of service of the order issued under sub. (1), if the person complained against makes affidavit before the judge that the person has delivered to the person's successor all of the official property and things in the person's custody or possession pertaining to the office, within the person's knowledge, the person complained against shall be discharged and all further proceedings in the matter before the judge shall cease.
(3) If the person complained against does not make such affidavit the matter shall proceed as follows:
(a) The judge shall inquire further into the matters set forth in the complaint, and if it appears that any such property or things are withheld by the person complained against the judge shall by warrant commit the person complained against to the county jail, there to remain until the delivery of such property and things to the complainant or until the person complained against be otherwise discharged according to law.
(b) If required by the complainant the judge shall also issue a warrant, directed to the sheriff or any constable of the county, commanding the sheriff or constable in the daytime to search such places as shall be designated in such warrant for such official property and things as were in the custody of the officer whose term of office expired or whose office became vacant, or of which the officer was the legal custodian, and seize and bring them before the judge issuing such warrant.
(c) When any such property or things are brought before the judge by virtue of such warrant, the judge shall inquire whether the same pertain to such office, and if it thereupon appears that the property or things pertain thereto the judge shall order the delivery of the property or things to the complainant.
History: 1977 c. 449; 1991 a. 316; 1993 a. 213.
19.23 Transfer of records or materials to historical
society.
(1) Any public records, in any state office, that are not required for current use
may, in the discretion of the public records board, be transferred into the custody of the
historical society, as provided in s. 16.61.
(2) The proper officer of any county, city, village, town, school district or other
local governmental unit, may under s. 44.09 (1) offer title and transfer custody to the
historical society of any records deemed by the society to be of permanent historical
importance.
(3) The proper officer of any court may, on order of the judge of that court,
transfer to the historical society title to such court records as have been photographed
or microphotographed or which have been on file for at least 75 years, and which are
deemed by the society to be of permanent historical value.
(4) Any other articles or materials which are of historic value and are not
required for current use may, in the discretion of the department or agency where such
articles or materials are located, be transferred into the custody of the historical
society as trustee for the state, and shall thereupon become part of the permanent
collections of said society.
History: 1975 c. 41 s. 52; 1981 c. 350 s. 13; 1985 a. 180 s. 30m; 1987 a. 147 s. 25; 1991 a. 226; 1995 a. 27.
19.24 Refusal to deliver money, etc., to successor.
Any public officer whatever, in this state, who shall, at the expiration of the officer's
term of office, refuse or wilfully neglect to deliver, on demand, to the officer's
successor in office, after such successor shall have been duly qualified and be entitled
to said office according to law, all moneys, records, books, papers or other property
belonging to the office and in the officer's hands or under the officer's control by
virtue thereof, shall be imprisoned not more than 6 months or fined not more than $100.
History: 1991 a. 316.
19.25 State officers may require searches, etc., without
fees. The secretary of state, treasurer and attorney general, respectively, are
authorized to require searches in the respective offices of each other and in the offices
of the clerk of the supreme court, of the court of appeals, of the circuit courts, of the
registers of deeds for any papers, records or documents necessary to the discharge of the
duties of their respective offices, and to require copies thereof and extracts therefrom
without the payment of any fee or charge whatever.
History: 1977 c. 187, 449.
19.31
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. 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 employees 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.
History: 1981 c. 335, 391.
An agency cannot promulgate an administrative rule
that creates an exception to the open records law. Chavala v. Bubolz, 204 Wis. 2d
82, 552 N.W.2d 892 (Ct. App. 1996).
The Wisconsin public records law. 67 MLR 65
(1983).
Municipal responsibility under the Wisconsin
revised public records law. Maloney. WBB Jan. 1983.
The public records law and the Wisconsin
department of revenue. Boykoff. WBB Dec. 1983.
The Wis. open records act: an update on issues.
Trubek and Foley. WBB Aug. 1986.
Toward a More Open and Accountable Government: A
Call For Optimal Disclosure Under the Wisconsin Open Records Law. Roang. 1994
WLR 719.
19.32 Definitions. As used in ss.19.33 to 19.39:
(1) "Authority" means any of the following having custody of a record: a
state or local office, elected official, agency, board, commission, committee, council,
department or public body corporate and politic created by constitution, law, ordinance,
rule or order; a governmental or quasi-governmental corporation except for the Bradley
center sports and entertainment corporation; a local exposition district under subch. II
of ch. 229; a family care district under s. 46.2895; any court of law; the assembly or
senate; a nonprofit corporation which receives more than 50% of its funds from a county or
a municipality, as defined in s. 59.001 (3), and which provides services related to public
health or safety to the county or municipality; a nonprofit corporation operating the
Olympic ice training center under s. 42.11 (3); or a formally constituted subunit of any
of the foregoing.
(1b) "Committed person" means a person who is committed under ch.51, 971,
975 or 980 and who is placed in an inpatient treatment facility, during the period that
the person's placement in the inpatient treatment facility continues.
(1c) "Incarcerated person" means a person who is incarcerated in a penal
facility or who is placed on probation and given confinement under s. 973.09 (4) as a
condition of placement, during the period of confinement for which the person has been
sentenced.
(1d) "Inpatient treatment facility" means any of the following:
(a) A mental health institute,
as defined in s. 51.01 (12).
(c<)
A facility or unit for the institutional care of sexually violent
persons specified under
s. 980.065.
(d<) The Milwaukee County
mental health complex established under s. 51.08.
(1e) "Penal facility" means a state prison under s. 302.01, county jail,
county house of correction or other state, county or municipal correctional or detention
facility.
(1m) "Person authorized
by the individual" means the parent, guardian, as defined in s. 48.02 (8), or legal
custodian, as defined in s. 48.02 (11), of a child, as defined in s. 48.02 (2), the
guardian, as defined in s. 880.01 (3), of an individual adjudged incompetent, as defined
in s. 880.01 (4), the personal representative or spouse of an individual who is deceased
or any person authorized, in writing, by the individual to exercise the rights granted
under this section.
(1r) "Personally
identifiable information" has the meaning specified in s. 19.62 (5).
(2) "Record" means any material on which written, drawn, printed, spoken,
visual or electromagnetic information is recorded or preserved, regardless of physical
form or characteristics, which has been created or is being kept by an authority.
"Record" includes, but is not limited to, handwritten, typed or printed pages,
maps, charts, photographs, films, recordings, tapes (including computer tapes), computer
printouts and optical disks. "Record" does not include drafts, notes,
preliminary computations and like materials prepared for the originator's personal use or
prepared by the originator in the name of a person for whom the originator is working;
materials which are purely the personal property of the custodian and have no relation to
his or her office; materials to which access is limited by copyright, patent or bequest;
and published materials in the possession of an authority other than a public library
which are available for sale, or which are available for inspection at a public library.
(3) "Requester"
means any person who requests inspection or copies of a record, except a committed or
incarcerated person, unless the person requests inspection or copies of a record that
contains specific references to that person or his or her minor children for whom he or
she has not been denied physical placement under ch. 767, and the record is otherwise
accessible to the person by law.
History:
1981 c. 335; 1985 a. 26, 29, 332; 1987 a. 305; 1991 a. 39, 1991 a. 269 ss. 26pd, 33b; 1993
a. 215, 263, 491; 1995 a. 158; 1997 a.79, 94; 1999 a. 9;
2001 a. 16.
A study commissioned by the corporation counsel and used study in various ways
was not a "draft" under sub. (2) although it was not in final form. A
document prepared other than for the originator's personal use although in preliminary
form or marked "draft" is a record. Fox v. Bock, 149 Wis. 2d 403, 438
N.W.2d 589 (1989).
A settlement agreement containing a pledge of confidentiality kept in the
possession of a school district's attorney was a public record subject to public
access. Journal/Sentinel v. Shorewood School Bd. 186 Wis. 2d 443, 521 N.W.2d 165
(Ct. App. 1994).
Individuals confined as sexually violent persons under ch. 980 are not
"incarcerated" under sub. (1c). Klein v. Wisconsin Resource Center, 218
Wis. 2d 487, 582 N.W.2d 44 (Ct. App. 1998).
A nonprofit corporation that receives 50% of its funds from a municipality or
county is an authority under sub. (1) regardless of the source from which the municipality
or county obtained those funds. Cavey v. Walrath, 229 Wis. 2d 105, 598 N.W.2d 240
(Ct. App. 1999).
"Records" must have some relation to functions of agency. 72
Atty. Gen. 99.
The treatment of drafts under the public records law is discussed. 77 Atty.
Gen. 100.
Applying Open Records Policy to Wisconsin District Attorneys: Can Charging
Guidelines Promote Public Awareness? Mayer. 1996 WLR 295.
19.33 Legal
custodians.
(1) An elected official is
the legal custodian of his or her records and the records of his or her office, but the
official may designate an employee of his or her staff to act as the legal custodian.
(2) The chairperson of a
committee of elected officials, or the designee of the chairperson, is the legal custodian
of the records of the committee.
(3) The cochairpersons of a
joint committee of elected officials, or the designee of the cochairpersons, are the legal
custodians of the records of the joint committee.
(4) Every authority not
specified in subs. (1) to (3) shall designate in writing one or more positions occupied by
an officer or employee of the authority or the unit of government of which it is a part as
a legal custodian to fulfill its duties under this subchapter. In the absence of a
designation the authority's highest ranking officer and the chief administrative officer,
if any, are the legal custodians for the authority. The legal custodian shall be
vested by the authority with full legal power to render decisions and carry out the duties
of the authority under this subchapter. Each authority shall provide the name of the
legal custodian and a description of the nature of his or her duties under this subchapter
to all employees of the authority entrusted with records subject to the legal custodian's
supervision.
(5) Notwithstanding sub. (4),
if an authority specified in sub. (4) or the members of such an authority are
appointed by another authority, the appointing authority may designate a legal custodian
for records of the authority or members of the authority appointed by the appointing
authority, except that if such an authority is attached for administrative purposes to
another authority, the authority performing administrative duties shall designate the
legal custodian for the authority for whom administrative duties are performed.
(6) The legal custodian of
records maintained in a publicly owned or leased building or the authority appointing the
legal custodian shall designate one or more deputies to act as legal custodian of such
records in his or her absence or as otherwise required to respond to requests as provided
in s. 19.35 (4). This subsection does not apply to members of the legislature or to
members of any local governmental body.
(7) The designation of a
legal custodian does not affect the powers and duties of an authority under this
subchapter.
(8) No elected official of a legislative body has a duty to act as or designate a
legal custodian under sub. (4) for the records of any committee of the body unless the
official is the highest ranking officer or chief administrative officer of the committee
or is designated the legal custodian of the committee's records by rule or by law.
History: 1981
c. 335.
19.34 Procedural
information.
(1) Each authority shall
adopt, prominently display and make available for inspection and copying at its offices,
for the guidance of the public, a notice containing a description of its organization and
the established times and places at which, the legal custodian under s. 19.33 from whom,
and the methods whereby, the public may obtain information and access to records in its
custody, make requests for records, or obtain copies of records, and the costs
thereof. This subsection does not apply to members of the legislature or to members
of any local governmental body.
(2) (a) Each authority
which maintains regular office hours at the location where records in the custody of the
authority are kept shall permit access to the records of the authority at all times during
those office hours, unless otherwise specifically authorized by law.
(b) Each authority which does
not maintain regular office hours at the location where records in the custody of the
authority are kept shall:
1. Permit access to its
records upon at least 48 hours' written or oral notice of intent to inspect or copy a
record; or
2. Establish a period of at
least 2 consecutive hours per week during which access to the records of the authority is
permitted. In such case, the authority may require 24 hours' advance written or oral
notice of intent to inspect or copy a record.
(c) An authority imposing a
notice requirement under par. (b) shall include a statement of the requirement in
its notice under sub. (1), if the authority is required to adopt a notice under that
subsection.
(d) If a record of an
authority is occasionally taken to a location other than the location where records of the
authority are regularly kept, and the record may be inspected at the place at which
records of the authority are regularly kept upon one business day's notice, the authority
or legal custodian of the record need not provide access to the record at the occasional
location.
History: 1981 c.
335.
19.35 Access
to records; fees.
(1) Right to inspection.
(a) Except as otherwise
provided by law, any requester has a right to inspect any record. Substantive common
law principles construing the right to inspect, copy or receive copies of records shall
remain in effect. The exemptions to the requirement of a governmental body to meet
in open session under s. 19.85 are indicative of public policy, but may be used as grounds
for denying public access to a record only if the authority or legal custodian under s.
19.33 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.
(am) In addition to any right
under par. (a), any requester who is an individual or person authorized by the
individual, has a right to inspect any record containing personally identifiable
information pertaining to the individual that is maintained by an authority and to make or
receive a copy of any such information. The right to inspect or copy a record under
this paragraph does not apply to any of the following:
1. Any record containing
personally identifiable information that is collected or maintained in connection with a
complaint, investigation or other circumstances that may lead to an enforcement action,
administrative proceeding, arbitration proceeding or court proceeding, or any such record
that is collected or maintained in connection with such an action or proceeding.
2. Any record containing
personally identifiable information that, if disclosed, would do any of the following:
a. Endanger an individual's
life or safety.
b. Identify a confidential
informant.
c. Endanger the security,
including the security of the population or staff, of any state prison under s. 302.01,
jail, as defined in s. 165.85 (2) (bg), secured correctional facility, as defined in
s. 938.02 (15m), secured child caring institution, as defined in s. 938.02 (15g), secured
group home, as defined in s. 938.02 (15p), mental health institute, as defined in s. 51.01
(12), center for the developmentally disabled, as defined in s. 51.01 (3),
or facility, specified under s. 980.065, for the institutional care of sexually
violent persons.
d. Compromise the
rehabilitation of a person in the custody of the department of corrections or detained in
a jail or facility identified in subd. 2.c.
3. Any record that is part of a records series, as defined in s. 19.62 (7), that is
not indexed, arranged or automated in a way that the record can be retrieved by the
authority maintaining the records series by use of an individual's name, address or other
identifier.
(b) Except as otherwise
provided by law, any requester has a right to inspect a record and to make or receive a
copy of a record which appears in written form. If a requester appears personally to
request a copy of a record, the authority having custody of the record may, at its option,
permit the requester to photocopy the record or provide the requester with a copy
substantially as readable as the original.
(c) Except as otherwise
provided by law, any requester has a right to receive from an authority having custody of
a record which is in the form of a comprehensible audio tape recording a copy of the tape
recording substantially as audible as the original. The authority may instead
provide a transcript of the recording to the requester if he or she requests.
(d) Except as otherwise
provided by law, any requester has a right to receive from an authority having custody of
a record which is in the form of a video tape recording a copy of the tape recording
substantially as good as the original.
(e) Except as otherwise
provided by law, any requester has a right to receive from an authority having custody of
a record which is not in a readily comprehensible form a copy of the information contained
in the record assembled and reduced to written form on paper.
(em) If an authority receives
a request to inspect or copy a record that is in handwritten form or a record that is in
the form of a voice recording which the authority is required to withhold or from which
the authority is required to delete information under s. 19.36 (8) (b) because the
handwriting or the recorded voice would identify an informant, the authority shall provide
to the requester, upon his or her request, a transcript of the record or the information
contained in the record if the record or information is otherwise subject to public
inspection and copying under this subsection.
(f) Except as otherwise
provided by law, any requester has a right to inspect any record not specified in pars.
(b) to (e) the form of which does not permit copying. If a requester requests
permission to photograph the record, the authority having custody of the record may permit
the requester to photograph the record. If a requester requests that a photograph of
the record be provided, the authority shall provide a good quality photograph of the
record.
(g) Paragraphs (a) to (c), (e)
and (f) do not apply to a record which has been or will be promptly published with copies
offered for sale or distribution.
(h) A request under pars. (a)
to (f) is deemed sufficient if it reasonably describes the requested record or the
information requested. However, a request for a record without a reasonable
limitation as to subject matter or length of time represented by the record does not
constitute a sufficient request. A request may be made orally, but a request must be
in writing before an action to enforce the request is commenced under s, 19.37.
(i) Except as authorized under
this paragraph, no request under pars. (a) and (b) to (f) may be refused because the
person making the request is unwilling to be identified or to state the purpose of the
request. Except as authorized under this paragraph, no request under pars. (a) to
(f) may be refused because the request is received by mail, unless prepayment of a fee is
required under sub. (3) (f). A requester may be required to show acceptable identification
whenever the requested record is kept at a private residence or whenever security reasons
or federal law or regulations so require.
(j) Notwithstanding pars. (a) to (f), a requester shall comply with any
regulations or restrictions upon access to or use of information which are specifically
prescribed by law.
(k) Notwithstanding pars. (a),
(am), (b) and (f), a legal custodian may impose reasonable restrictions on the manner of
access to an original record if the record is irreplaceable or easily damaged.
(l) Except as necessary to
comply with pars. (c) to (e) or s. 19.36 (6), this subsection does not require an authority
to create a new record by extracting information from existing records and compiling the
information in a new format.
(2) Facilities.
The authority shall provide any person who is authorized to inspect or copy a record under
sub. (1) (a), (am), (b) or (f) with facilities comparable to those used by its employees
to inspect, copy and abstract the record during established office hours. An
authority is not required by this subsection to purchase or lease photocopying,
duplicating, photographic or other equipment or to provide a separate room for the
inspection, copying or abstracting of records.
(3) Fees.
(a) An authority may impose a
fee upon the requester of a copy of a record which may not exceed the actual, necessary
and direct cost of reproduction and transcription of the record, unless a fee is otherwise
specifically established or authorized to be established by law.
(b) Except as otherwise
provided by law or as authorized to be prescribed by law an authority may impose a fee
upon the requester of a copy of a record that does not exceed the actual, necessary and
direct cost of photographing and photographic processing if the authority provides a
photograph of a record, the form of which does not permit copying.
(c) Except as otherwise
provided by law or as authorized to be prescribed by law, an authority may impose a fee
upon a requester for locating a record, not exceeding the actual, necessary and direct
cost of location, if the cost is $50 or more.
(d) An authority may impose a
fee upon a requester for the actual, necessary and direct cost of mailing or shipping of
any copy or photograph of a record which is mailed or shipped to the requester.
(e) An authority may provide
copies of a record without charge or at a reduced charge where the authority determines
that waiver or reduction of the fee is in the public interest.
(f) An authority may require prepayment by a requester of any fee or fees imposed
under this subsection if the total amount exceeds $5. If the requester is a
prisoner, as defined in s. 301.01 (2), or is a person confined in a federal correctional
institution located in this state, and he or she has failed to pay any fee that was
imposed by the authority for a request made previously by that requester, the authority
may require prepayment both of the amount owed for the previous request and the amount
owed for the current request.
(4) Time for compliance and
procedures.
(a) Each authority, upon
request for any record, shall, as soon as practicable and without delay, either fill the
request or notify the requester of the authority's determination to deny the request in
whole or in part and the reasons therefor.
(b) If a request is made
orally, the authority may deny the request orally unless a demand for a written statement
of the reasons denying the request is made by the requester within 5 business days of the
oral denial. If an authority denies a written request in whole or in part, the
requester shall receive from the authority a written statement of the reasons for denying
the written request. Every written denial of a request by an authority shall inform
the requester that if the request for the record was made in writing, then the
determination is subject to review by mandamus under s. 19.37 (1) or upon application to
the attorney general or a district attorney.
(c) If an authority receives a
request under sub. (1) (a) or (am) from an individual or person authorized by the
individual who identifies himself or herself and states that the purpose of the request is
to inspect or copy a record containing personally identifiable information pertaining to
the individual that is maintained by the authority, the authority shall deny or grant the
request in accordance with the following procedure:
1. The authority shall first
determine if the requester has a right to inspect or copy the record under sub. (1)
(a).
2. If the authority determines
that the requester has a right to inspect or copy the record under sub. (1) (a), the
authority shall grant the request.
3. If the authority determines
that the requester does not have a right to inspect or copy the record under sub.
(1) (a), the authority shall then determine if the requester has a right to inspect or
copy the record under sub. (1) (am) and grant or deny the request accordingly.
(5) Record destruction.
No authority may destroy any record at any time after the receipt of a request for
inspection or copying of the record under sub. (1) until after the request is granted or
until at least 60 days after the date that the request is denied or, if the requester is a
committed or incarcerated person, until at least 90 days after the date that the request
is denied. If an authority receives written notice that an action relating to a
record has been commenced under s. 19.37, the record may not be destroyed until after the
order of the court in relation to such record is issued and the deadline for appealing
that order has passed, or, if appealed, until after the order of the court hearing the
appeal is issued. If the court orders the production of any record and the order is
not appealed, the record may not be destroyed until after the request for inspection or
copying is granted.
(6) Elected official
responsibilities.
No elected official is responsible for the record of any other
elected official unless he or she has possession of the record of that other official.
History:
1981 c. 335, 391; 1991 a. 39, 1991 a. 269 ss. 34am, 40am; 1993 a. 93; 1995 a. 77, 158;
1997 a. 94, 133; 1999 a. 9;
2001 a. 16.
A mandamus petition to inspect a county hospital's statistical, administrative
and other records not identifiable with individual patients, states a cause of action
under this section. State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 257 N.W.2d
877 (1977).
Police daily arrest lists must be open for public inspection. Newspapers,
Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979).
This section is a statement of the common law rule that public records are open
to public inspection subject to common law limitations. Section 59.14, 1979 stats.,
[now 59.20 (3)] is a legislative declaration granting those persons who come under its
coverage an absolute right of inspection subject only to reasonable administrative
regulations. State ex rel. Bilder v. Delavan Tp. 112 Wis. 2d 539, 334 N.W.2d 252
(1983).
A newspaper had the right to intervene to protect its right to examine sealed
court files. State ex rel. Bilder v. Delavan Tp. 112 Wis. 2d 539, 334 N.W.2d 252
(1983).
Although a meeting was properly closed, in order to refuse inspection of records
of the meeting, the custodian was required by sub. (1) (a) to state specific and
sufficient public policy reasons why the public's interest in nondisclosure outweighed the
right of inspection. Oshkosh Northwestern Co. v. Oshkosh Library Bd. 125 Wis. 2d
480, 373 N.W.2d 459 (Ct. App. 1985).
Courts must apply the open records balancing test to questions involving
disclosure of court records. Under the Hathaway test, a party must show that the
public interests favoring secrecy outweigh those favoring disclosure. C. L. v.
Edson, 140 Wis. 2d 168, 409 N.W.2d 417 (Ct. App. 1987).
Public records germane to pending litigation were available under this section
even though the discovery cutoff deadline had passed. State ex rel. Lank v.
Rzentkowski, 141 Wis. 2d 846, 416 N.W.2d 635 (Ct. App. 1987).
In determining whether the trial court properly upheld a custodian's denial of
access, an appellate court will inquire whether the trial court made a factual
determination supported by the record of whether documents implicate a secrecy interest,
and, if so, whether the secrecy interest outweighs the interests favoring release.
Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989).
That releasing records would reveal a confidential informant's identity was a
legally specific reason for denial of a records request; the public interest in not
revealing informant's identity outweighed public interest in disclosure of records.
Mayfair Chrysler-Plymouth v. Baldarotta, 162 Wis. 2d 142, 469 N.W.2d 638 (1991).
The recognized public policy interest in denying access to police personnel files
overrides the presumption that records should be released. Village of Butler v.
Cohen, 163 Wis. 2d 819, 472 N.W.2d 579 (Ct. App. 1991).
Items subject to examination under s. 346.70 (4) (f) may not be withheld by
prosecution under a common law rule that investigative material may be withheld from a
criminal defendant. State ex rel. Young v. Shaw, 165 Wis. 2d 276, 477 N.W.2d 340
(Ct. App. 1991).
Prosecutor's files are exempt from public access under the common law.
State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991).
Records relating to pending claims against the state under s. 893.82 need not be
disclosed under s. 19.35; records of non-pending claims must be disclosed unless an in
camera inspection reveals that the attorney-client privilege would be violated.
George v. Record Custodian, 169 Wis. 2d 573, 485 N.W.2d 460 (Ct. App. 1992).
The public records law confers no exemption as of right on indigents from payment
of fees under (3). George v. Record Custodian, 169 Wis. 2d 573, 485 N.W.2d 460 (Ct.
App. 1992).
A settlement agreement containing a pledge of confidentiality kept in the
possession of a school district's attorney was a public record subject to public access
under sub. (3). Journal/Sentinel v. School District of Shorewood, 186 Wis. 2d 443,
521 N.W.2d 165 (Ct. App. 1994).
The denial of a prisoner's information request regarding illegal behavior by
guards on the grounds that it could compromise the guards' effectiveness and subject them
to harassment was insufficient. State ex. rel. Ledford v. Turcotte, 195 Wis. 2d 244,
536 N.W.2d 130 (Ct. App. 1995).
The amount of prepayment required for copies may be based on a reasonable
estimate. State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 538 N.W.2d 608 (Ct. App.
1995).
The Foust decision does not automatically exempt all records stored in a closed
prosecutorial file. The exemption is limited to material actually pertaining to the
prosecution. Nichols v. Bennett, 199 Wis. 2d 268, 544 N.W.2d 428 (1996).
Department of Regulation and Licensing test scores were subject to disclosure
under the open records law. Munroe v. Braatz, 201 Wis. 2d 442, 549 N.W.2d 452 (Ct.
App. 1996).
Subs. (1) (i) and (3) (f) did not permit a demand for prepayment of $1.29 in
response to a mail request for a record. Borzych v. Paluszcyk, 201 Wis. 2d 523, 549
N.W.2d 253 (Ct. App. 1996).
Personal records in the hands of an authority are not exempt from the open
records law. The custodian of the records must consider all relevant factors,
balancing public and private interests, in determining whether the records should be
released. The individual whose personal interests are implicated by the potential
release of the records may intervene and seek circuit court review of a decision to
release the records. Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996).
An agency cannot promulgate an administrative rule that creates an exception to
the open records law. Chavala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Ct. App.
1996).
While certain statutes grant explicit exceptions to the open records law, many
statutes set out broad categories of records not open to an open records request. A
custodian faced with such a broad statute must state with specificity a public policy
reason for refusing to release the requested record. Chavala v. Bubolz, 204 Wis. 2d
82, 552 N.W.2d 892 (Ct. App. 1996).
The custodian is not authorized to comply with an open records request at some
unspecified date in the future. Such a response constitutes a denial of the
request. WTMJ, Inc. v. Sullivan, 204 Wis. 2d 452, 555 N.W.2d 125 (Ct. App. 1996).
Subject to the redaction of officers' home addresses and supervisors' conclusions
and recommendations regarding discipline, police records regarding use of deadly force are
subject to public inspection. State ex rel. Journal/Sentinel, Inc. v. Arreola, 207
Wis. 2d 496, 558 N.W.2d 670 (Ct. App. 1996).
A public school student's interim grades are pupil records specifically exempted from
disclosure under s. 118.125. If records are specifically exempted from disclosure,
failure to specifically state reasons for denying an open records request for those
records does not compel disclosure of those records. State ex rel. Blum v. Board of
Education, 209 Wis. 2d 377, 565 N.W.2d 140 (Ct. App. 1997).
Requesting a copy of 180 hours of audiotape of "911" calls, together
with a transcription of the tape and log of each transmission received, was a request
without "reasonable limitation" and was not a "sufficient request"
under sub. (1) (h). Schopper v. Gehring, 210 Wis. 2d 209, 565 N.W.2d 187 (Ct. App.
1997).
When access is sought to any records that pertain to an individual, the targeted
individual has a right to notification and to seek court review of the decision if the
record custodian agrees to release the information. The test outlined in Woznicki
applies to personnel records of public sector employees. Klein v. Wisconsin Resource
Center, 218 Wis. 2d 487, 582 N.W.2d 44 (Ct. App. 1998).
If the requested information is covered by an exempting statute that does not
require a balancing of public interests, there is no need for a custodian to conduct such
a balancing. Written denial claiming a statutory exception by citing the specific
statute or regulation is sufficient. State ex rel. Savinski v. Kimble, 221 Wis. 2d
833, 586 N.W.2d 36 (Ct. App. 1998).
Pursuant to Woznicki, the circuit court has a two-pronged role in reviewing a
custodian's decision to release records over the record subject's objection. First
the court determines if the custodian performed the appropriate balancing test. Then
the court performs a de novo independent review in which the taking of additional evidence
is permitted. It was proper for the court to review newspaper articles regarding the
subject of the records and to consider that the information already available to the
public had already lessened the subject's reputation. Kailin v. Rainwater, 226 Wis.
2d 134, 593 N.W.2d 865 (Ct. App. 1999).
Protecting persons who supply information or opinions about an inmate to the
parole commission is a public interest that may outweigh the public interest in access to
documents that could identify those persons. State ex rel. Bergmann v. Faust, 226
Wis. 2d 273, 595 N.W.2d 75 (Ct. App. 1999).
An employee's right to de novo judicial review of a decision to release
information from personnel records recognized Woznicki applies in all cases in which any
record custodian decides to disclose information implicating the privacy or reputational
interests of a public employee. Milwaukee Teachers' Education Association v.
Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999).
Individual employees have a strong privacy interest in their names, particularly
when coupled with their occupation, wages and hours, and place of employment, and the
public has a strong interest in protecting that privacy. That public interest
substantially outweighs the public interest favoring disclosure of the names in a public
records request for wage records of private employees performing a government contract
subject to s. 66.293. Kraemer Brothers, Inc. v. Dane County, 229 Wis. 2d 86, 599
N.W.2d 75 (Ct. App. 1999).
The ultimate purchasers of municipal bonds from the bond's underwriter, whose
only obligation was to purchase the bonds, were not "contractor's records under sub.
(3). Machotka v. Village of West Salem, 2000 WI App 43, 233 Wis. 2d 106, 607 N.W.2d
319.
Sub. (1) (b) gives the record custodian, and not the requester, the choice of
how a record will be copied. The requester cannot elect to use his or her own
copying equipment without the custodian's permission. Grebner v. Schiebel, 2001
WI App 17, 240 Wis. 2d 551, 624 N.W.2d 892.
Woznicki does not require that a custodian prepare a detailed
analysis of the factors used in applying the balancing test between public and
private interests in determining whether to release information. Atlas Transit,
Inc. v. Korte, 2001 WI App 286, 249 Wis. 2d 242, 638 N.W.2d 625.
Requests for university admissions records focusing on test scores, class rank,
grade point average, race, gender, ethnicity, and socio-economic background was
not a request for personally identifiable information and release was not barred
by federal law or public policy. That the requests would require the university
to redact information from thousands of documents under s. 19.36 (6) did not
essentially require the university to create new records and, as such, did not
provide grounds for denying the request under under s. 19.35 (1) (L). Osborn v.
Board of Regents of the University of Wisconsin System, 2002 WI 83, __ Wis. 2d
__, 647 N.W.2d 158.
The police report of a closed investigation regarding a teacher's conduct that
did not lead either to an arrest or prosecution, or to any administrative
disciplinary action, was subject to release. Linzmeyer v. Forcey, 2002 WI 84, __
Wis. 2d __, 646 N.W.2d 811.
Examination of birth records cannot be denied simply because the examiner has a
commercial purpose. 58 Atty. Gen. 67.
Consideration of a resolution is a formal action of an administrative or minor
governing body and when taken in a proper closed session, the resolution and result of the
vote must be made available for public inspection absent a specific showing that the
public interest would be adversely affected. 60 Atty. Gen. 9.
Inspection of public records obtained under official pledges of confidentiality
may be denied if: (1) a clear pledge has been made in order to obtain the information, (2)
the pledge was necessary to obtain the information, and (3) the custodian determines that
the harm to the public interest resulting from inspection would outweigh the public
interest in full access to public records. The custodian must permit inspection of
information submitted under an official pledge of confidentiality if the official or
agency had specific statutory authority to require its submission. 60 Atty. Gen.
284.
The right to inspection and copying of public records in decentralized offices is
discussed. 61 Atty. Gen. 12.
Public records subject to inspection and copying by any person would include a
list of students awaiting a particular program in a VTAE (technical college) district
school. 61 Atty. Gen. 297.
The investment board can only deny members of the public from inspecting and
copying portions of the minutes relating to the investment of state funds and documents
pertaining thereto on a case-by-case basis if valid reasons for denial exist and are
specially stated. 61 Atty. Gen. 361.
Matters and documents in the possession or control of school district officials
containing information concerning the salaries, including fringe benefits, paid to
individual teachers are matters of public record. 63 Atty. Gen. 143.
The scope of the duty of the governor to allow members of the public to examine
and copy public records in his custody is discussed. 63 Atty. Gen. 400.
The public's right to inspect land acquisition files of the department of natural
resources is discussed. 63 Atty. Gen. 573.
Financial statements filed in connection with applications for motor vehicle
dealers' and motor vehicle salvage dealers' licenses are public records, subject to
limitations. 66 Atty. Gen. 302.
Sheriff's radio logs, intradepartmental documents kept by the sheriff and blood
test records of deceased automobile drivers in the hands of the sheriff are public
records, subject to limitations. 67 Atty. Gen. 12.
The right to examine and copy computer-stored information is discussed. 68
Atty. Gen. 231.
After the transcript of court proceedings is filed with the clerk of court, any
person may examine or copy the transcript. 68 Atty. Gen. 313.
A custodian may not require a requester to pay the cost of an unrequested
certification. Unless the fee for copies of records is established by law, a
custodian may not charge more than the actual and direct cost of reproduction. 72
Atty. Gen. 36.
Copying fees, but not location fees, may be imposed on a requester for the cost
of a computer run. 72 Atty. Gen. 68.
The fee for copying public records is discussed.
72 Atty. Gen. 150.
Public records relating to employee grievances are
not generally exempt from disclosure. Nondisclosure must be justified on a
case-by-case basis. 73 Atty. Gen. 20.
The disclosure of an employee's birthdate, sex,
ethnic heritage and handicapped status is discussed. 73 Atty. Gen. 26.
The department of regulation and licensing may refuse
to disclose records relating to complaints against health care professionals while the
matters are merely "under investigation"; good faith disclosure of the same will
not expose the custodian to liability for damages; prospective continuing requests for
records are not contemplated by public records law. 73 Atty. Gen. 37.
Prosecutors' case files are exempt from disclosure.
74 Atty. Gen. 4.
The relationship between the public records law and
pledges of confidentiality in settlement agreements is discussed. 74 Atty. Gen. 14.
Ambulance records relating to medical history,
condition or treatment are confidential while other ambulance call records are subject to
disclosure under public records law. 78 Atty. Gen. 71.
19.36Limitations upon access and withholding.
(1) Application of other laws. Any record which is specifically
exempted from disclosure by state or federal law or authorized to be exempted from
disclosure by state law is exempt from disclosure under s. 19.35 (1), except that any
portion of that record which contains public information is open to public inspection as
provided in sub. (6).
(2) Law enforcement records. Except as otherwise provided by law,
whenever federal law or regulations require or as a condition to receipt of aids by this
state require that any record relating to investigative information obtained for law
enforcement purposes be withheld from public access, then that information is exempt from
disclosure under s. 19.35 (1).
(3)
Contractors' records. Each authority shall make available for
inspection and copying under s. 19.35 (1) any record produced or collected under a contract
entered into by the authority with a person other than an authority to the same extent as
if the record were maintained by the authority. This subsection does not apply to
the inspection or copying of a record under s. 19.35 (1) (am).
(4) Computer programs and data. A computer program, as defined in s.
22.03 (4) (c), is not subject to examination or copying under s. 19.35 (1), but the
material used as input for a computer program or the material produced as a product of the
computer program is subject to the right of examination and copying, except as otherwise
provided in s. 19.35 or this section.
(5) Trade secrets. An authority may withhold access to any record or
portion of a record containing information qualifying as a trade secret as defined in s.
134.90 (1) (c).
(6) Separation of information. If a record contains information that
is subject to disclosure under s. 19.35 (1) (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.
(7) Identities of applicants for public positions.
(a) In this section, "final candidate" means each applicant for a position
who is seriously considered for appointment or whose name is certified for appointment and
whose name is submitted for final consideration to an authority for appointment to any
state position, except a position in the classified service, or to any local public
office, as defined in s. 19.42 (7w). "Final candidate" includes, whenever there
are at least 5 candidates for an office or position, each of the 5 candidates who are
considered most qualified for the office or position by an authority, and whenever there
are less than 5 candidates for an office or position, each such candidate. Whenever
an appointment is to be made from a group of more than 5 candidates, "final
candidate" also includes each candidate in the group.
(b) Every applicant for a position with any authority may indicate in writing to the
authority that the applicant does not wish the authority to reveal his or her identity.
Except with respect to an applicant whose name is certified for appointment to a
position in the state classified service or a final candidate, if an applicant makes such
an indication in writing, the authority shall not provide access to any record related to
the application that may reveal the identity of the applicant.
(8) Identities of law enforcement informants.
(a) In this subsection:
1. "Informant" means an individual who requests confidentiality from a law
enforcement agency in conjunction with providing information to that agency or, pursuant
to an express promise of confidentiality by a law enforcement agency or under
circumstances in which a promise of confidentiality would reasonably be implied, provides
information to a law enforcement agency or, is working with a law enforcement agency to
obtain information, related in any case to any of the following:
a. Another person who the individual or the law enforcement agency suspects has
violated, is violating or will violate a federal law, a law of any state or an ordinance
of any local government.
b. Past, present or future activities that the individual or law enforcement agency
believes may violate a federal law, a law of any state or an ordinance of any local
government.
2. "Law enforcement agency" has the the meaning given in s. 165.83 (1)
(b), and includes the department of corrections.
(b) If an authority that is a law enforcement agency receives a request to inspect
or copy a record or portion of a record under s. 19.35 (1) (a) that contains specific
information including but not limited to a name, address, telephone number, voice
recording or handwriting sample which, if disclosed, would identify an informant, the
authority shall delete the portion of the record in which the information is contained or,
if no portion of the record can be inspected or copied without identifying the informant,
shall withhold the record unless the legal custodian of the record, designated
under s. 19.33, makes a determination, at the time that the request is made, that the public
interest in allowing a person to inspect, copy or receive a copy of such identifying
information outweighs the harm done to the public interest by providing such access.
(9) Records of plans or specifications for state buildings. Records
containing plans or specifications for any state-owned or state-leased building, structure
or facility or any proposed state-owned or state-leased building, structure or facility
are not subject to the right of inspection or copying under s. 19.35 (1) except as the
department of administration otherwise provides by rule.
History: 1981 c. 335; 1985 a. 236;
1991 a. 39, 269, 317; 1993 a. 93; 1995 a. 27;
2001 a. 16.
Sub. (2) does not require providing access to payroll
records of subcontractors of a prime contractor of a public construction project.
Building and Construction Trades Council v. Waunakee Community School District, 221 Wis.
2d 575, 585 N.W.2d 726 (Ct. App. 1999).
Production of an analog audio tape was insufficient
under sub. (4) when the requester asked for examination and copying of the original
digital audio tape. State ex rel. Milwaukee Police Association v. Jones, 2000 WI App
146, 237 Wis. 2d 840, 615 N.W.2d 190.
Requests
for university admissions records focusing on test scores,
class rank, grade point average, race, gender, ethnicity, and socio-economic
background was not a request for personally identifiable information and release
was not barred by federal law or public policy. That the requests would require
the university to redact information from thousands of documents under s. 19.36
(6) did not essentially require the university to create new records and, as
such, did not provide grounds for denying the request under under s. 19.35 (1)
(L). Osborn v. Board of Regents of the University of Wisconsin System, 2002 WI
83, __ Wis. 2d __, 647 N.W.2d 158.
Separation costs must be borne by the agency.
72 Atty. Gen. 99.
A computerized compilation of bibliographic records
is discussed in relation to copyright law; a requester is entitled to a copy of computer
tape or a printout of information on the tape. 75 Atty. Gen. 133 (1986).
An exemption to the federal Freedom of Information
Act was not incorporated under sub. (1). 77 Atty. Gen. 20.
Sub. (7) is an exception to the public records law
and should be narrowly construed. In sub. (7) "applicant" and
"candidate" are synonymous. "Final candidates" are the five most
qualified unless there are less than five applicants, in which case all are final
candidates. 81 Atty. Gen. 37.
Public access to law enforcement records.
Fitzgerald. 68 MLR 705 (1985).
19.365 Rights of data subject to challenge; authority
corrections.
(1) Except as provided under sub. (2), an individual or person authorized by the
individual may challenge the accuracy of a record containing personally identifiable
information pertaining to the individual that is maintained by an authority if the
individual is authorized to inspect the record under s. 19.35 (1) (a) or (am) and the
individual notifies the authority, in writing, of the challenge. After receiving the
notice, the authority shall do one of the following:
(a) Concur with the challenge and correct the information.
(b) Deny the challenge, notify the individual or person authorized by the individual
of the denial and allow the individual or person authorized by the individual to file a
concise statement setting forth the reasons for the individual's disagreement with the
disputed portion of the record. A state authority that denies a challenge shall also
notify the individual or person authorized by the individual of the reasons for the
denial.
(2) This section does not apply to any of the following records:
(a) Any record transferred to
an archival depository under s. 16.61 (13).
(b) Any record pertaining to
an individual if a specific state statute or federal law governs challenges to the
accuracy of the record.
History:
1991 a. 269 ss. 27d, 27e, 35am, 37am, 39am.
19.37 Enforcement
and penalties.
(1) Mandamus. If
an authority withholds a record or a part of a record or delays granting access to a
record or part of a record after a written request for disclosure is made, the requester
may pursue either, or both, of the alternatives under pars. (a) and (b).
(a) The requester may bring an
action for mandamus asking a court to order release of the record. The court may
permit the parties or their attorneys to have access to the requested record under
restrictions or protective orders as the court deems appropriate.
(b) The requester may, in
writing, request the district attorney of the county where the record is found, or request
the attorney general, to bring an action for mandamus asking a court to order release of
the record to the requester. The district attorney or attorney general may bring
such an action.
(1m) Time for commencing
action. No action for mandamus under sub. (1) to challenge the denial of a
request for access to a record or part of a record may be commenced by any committed or
incarcerated person later than 90 days after the date that the request is denied by the
authority having custody of the record or part of the record.
(1n) Notice of claim.
Sections 893.80 and 893.82 do not apply to actions commenced under this section.
(2) Costs, fees and
damages.
(a) Except as provided in this
paragraph, the court shall award reasonable attorney fees, damages of not less than $100,
and other actual costs to the requester if the requester prevails in whole or in
substantial part in any action filed under sub. (1) relating to access to a record
or part of a record under s. 1935 (1) (a). If the requester is a committed or incarcerated
person, the requester is not entitled to any minimum amount of damages, but the court may
award damages. Costs and fees shall be paid by the authority affected or the unit of
government of which it is a part, or by the unit of government by which the legal
custodian under s. 19.33 is employed and may not become a personal liability of any public
official.
(b) In any action filed under
sub. (1) relating to access to a record or part of a record under s. 1935 (1) (am), if the
court finds that the authority acted in a wilful or intentional manner, the court shall
award the individual actual damages sustained by the individual as a consequence of the
failure.
(3) Punitive damages.
If a court finds that an authority or legal custodian under s.19.33 has arbitrarily
and capriciously denied or delayed response to a request or charged excessive fees, the
court may award punitive damages to the requester.
(4) Penalty. Any
authority which or legal custodian under s. 1933 who arbitrarily and capriciously
denies or delays response to a request or charges excessive fees may be required to
forfeit not more than $1,000. Forfeitures under this section shall be enforced by
action on behalf of the state by the attorney general or by the district attorney of any
county where a violation occurs. In actions brought by the attorney general, the
court shall award any forfeiture recovered together with reasonable costs to the state;
and in actions brought by the district attorney, the court shall award any forfeiture
recovered together with reasonable costs to the county.
History: 1981 c. 335,
391; 1991 a. 269 s. 43d; 1995 a. 158; 1997 a. 94.
A party seeking fees under sub. (2) must show that the prosecution of an action
could reasonably be regarded as necessary to obtain the information and that a
"causal nexus" exists between that action and the agency's surrender of the
information. State ex rel. Vaughan v. Faust, 143 Wis. 2d 868, 422 N.W.2d 898 (Ct.
App. 1988).
If an agency exercises due diligence but is unable to respond timely to a records
request, the plaintiff must show that a mandamus action was necessary to secure the
records release to qualify for award of fees and costs under sub. (2). Racine Ed.
Ass'n. v. Bd. of Ed., 145 Wis. 2d 518, 427 N.W.2d 414 (Ct. App. 1988).
Assuming sub. (1) (a) applies before mandamus is issued, the trial court retains
discretion to refuse counsel's participation in an in camera inspection. Milwaukee
Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989).
If the trial court has an incomplete knowledge of contents of the public records
sought, it must conduct an in camera inspection to determine what may be disclosed
following a custodian's refusal. State ex rel. Morke v. Donnelly, 155 Wis. 2d 521,
455 N.W.2d 893 (1990).
A prose litigant not entitled to attorney fees. State ex rel. Young v.
Shaw, 165 Wis. 2d 276, 477 N.W.2d 340 (Ct. App. 1991).
A favorable judgment or order is not a necessary condition precedent to find that
a party prevailed against an agency under sub. (2); a causal nexus must be shown between
the prosecution of the mandamus action and the release of the requested information.
Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 499 N.W.2d 918 (Ct. App. 1993).
Actions brought under the open meetings and open records laws are exempt from the
notice provisions of s. 893.80 (1). Auchinleck v. Town of LaGrange, 200 Wis. 2d 585,
547 N.W.2d 587 (1996).
An inmate's right to mandamus under this section is subject to s. 801.02 (7),
which requires exhaustion of administrative remedies before an action may be
commenced. Moore v. Stahowiak, 212 Wis. 2d 744, 569 N.W.2d 711 (Ct. App.
1997).
Actual damages are
the liability of the agency. Punitive damages and forfeitures can be the liability
of either the agency or the legal custodian or both. Section 895.46 (1) (a)
probably provides indemnification for punitive damages assessed against a custodian, but
not for forfeitures. 72 Atty. Gen. 99.
19.39 Interpretation by attorney general. Any person may request advice from the attorney general as to the applicability of this subchapter under any circumstances. The attorney
general may respond to such a request.
History: 1981 c. 335.