As we near the centennial of the enactment of Wisconsin’s first unified Public Records Law, governmental entities are grappling with an exponential increase in the number of public records requests filed by media outlets, bloggers, lawyers, watchdog organizations, advocacy groups, and the general citizenry. Custodians of records are usually not lawyers, and it can often be challenging for them to identify all the exceptions to disclosure pertinent to any given request.
Wisconsin has a very broad Public Records Law. As set forth in Wis. Stat. section 19.31, the public policy of the state is 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.” The statute further provides that the Public Records Law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business.”
Almost every governmental entity is subject to the Public Records Law. Any state or local office, elective official, agency, board, commission, committee, council, department, or public body corporate and politic created by the constitution or by any law, ordinance, rule, or order, along with a number of other entities identified in Wis. Stat. section 19.32(1), are considered “authorities” that have a statutory duty to respond to public records requests.
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These online resources will help you comply with Wisconsin’s Public Records Law, whether you are making a request or fulfilling one:
Although Wisconsin’s Public Records Law is broad in scope and application, the public’s right to access public records is not absolute.1 There are hundreds of statutory and common-law exceptions to disclosure. If no statute or case precludes or mandates disclosure, a custodian must then “decide whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure.”2 This is what is known as the “balancing test.”
Traditionally, sifting through the various exceptions and applying the balancing test has been the most difficult aspect of complying with the Public Records Law. But recently, due to an enormous uptick in requests for records, merely processing all the requests has become a larger challenge for some authorities. The amount of requests being made is not likely to decrease any time in the near future, so authorities need to ensure that they can effectively respond to public records requests in a manageable and efficient manner.
To that end, here are some basic rules of thumb that attorneys can advise their clients to follow so that they can more effectively and promptly comply with Wisconsin’s Public Records Law.
Have a Procedure for Receiving Public Records Requests
Many authorities either do not have a procedure in place to receive requests or have not updated their older, outdated procedures. Having a current procedure in place is actually required by statute.3
Although Wisconsin’s Public Records Law is broad in scope and application, the public’s right to access public records is not absolute.
Every authority, other than members of the legislature or members of any local governmental body, is required to prominently display at its offices a notice detailing the particulars of how an individual may submit a public records request. The notice must contain a description of its organization, identify the custodian of its records, and set forth the time, place, and manner in which an individual can file a public records request. If the custodian is an elected official who has designated an employee of his or her staff to act as the record custodian, that employee should also be identified.
Prevent Destruction of Responsive Records
Once a request is received, an authority must ensure that potentially responsive records are not destroyed pursuant to any regular record-retention schedules. To comply with this obligation, custodians should have a passing familiarity with the retention schedules applicable to any records maintained by the authority, and a procedure should be established that allows the custodian to place a hold on records to prevent their inadvertent destruction.
Custodians should be aware that there are criminal penalties for altering or falsifying public records and for destroying, damaging, removing, or concealing public records with the intent to injure or defraud.4
Acknowledge Receipt of the Request
Although not required, it is sound practice to send all requesters an initial receipt letter, informing them that the request has been received and that it is being addressed. If the request is particularly large and complex, this is an opportunity to inform the requester that it may take longer than normal to process. If the request is unreasonably broad or burdensome, this is an opportunity to ask the requester if he or she is willing to narrow or refine the request. If nothing else, sending an initial receipt letter informs the requester which staff member to contact should there be a need for further communication.
Do Not Be Afraid to Contact the Requester
Nothing precludes a custodian from contacting the requester to ask questions regarding any ambiguity in the request. Requesters are usually candid about what records they are specifically interested in, and they might agree to limit the time frame or subject matter of their request.
The benefit of such an agreement is twofold: it reduces the amount of time a custodian spends locating and reviewing records, and it shortens the amount of time a requester has to wait to obtain the desired records. In some cases, a requester will refuse to narrow his or her request. When that happens, custodians should be aware that they cannot deny the request solely because they believe that the request could be narrowed.5
It is also a good idea for the custodian to contact a requester if it is discovered that the actual costs of locating and producing the records are going to exceed a previously provided estimate. If cost is an issue, the requester might prefer that the authority not proceed with processing the request or might wish to narrow the request.
Although there is no set time limit to respond to public records requests, an authority must respond to requests “as soon as practicable, and without delay.”6 The Wisconsin Department of Justice recommends that 10 working days is generally a reasonable amount of time for responding to a simple request for a limited number of easily identifiable records.7 For more complex requests, what constitutes a reasonable amount of time depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and related considerations.8
Increasingly, the growing volume of requests being made is dictating the timing of the response. As more and more requests get filed, it takes longer and longer to respond to them. This has resulted in a great deal of frustration. The custodians and staff members, who almost always have other duties, are frustrated by the amount of time they must spend responding to public records requests, and the requesters are frustrated because of the increased amount of time it takes to receive the records they requested.
The hiring of additional staff to respond to pending requests may assist authorities in responding more rapidly, but this can be expensive. At the recent Public Records Summit hosted by the Wisconsin Attorney General, the president of the Wisconsin Register of Deeds Association said that the association recently had to spend more than $100,000 to hire additional staff to assist in responding to public records requests.
At a time when local governments are tightening their belts, finding the money to hire additional staff can be daunting. In lieu of adding staff, custodians should be candid about their current workload and advise requesters up front if there is a backlog.
Know How to Locate and Review Responsive Records
Although the proliferation of electronic records has greatly reduced the amount of time it takes to locate records, not all records are electronic. Depending on the request, it still may take time to locate responsive records. A good practice for locating records is for custodians to contact any staff members who are likely to have responsive records or know where the records are located. In smaller offices, a custodian may be able to contact each staff member individually. In larger offices, a mass email will suffice.
Once the records are located, the custodian must examine each record to see if any portions need to be redacted pursuant to statute or case law, and if not, to apply the required balancing test to each individual record.9
The exceptions to disclosure will be dictated by circumstance. Common information statutorily excepted from disclosure includes Social Security numbers, employees’ personally identifying information, trade secrets, financially identifying information, library user records, pupil records, patient health care records, mental health records, records protected by the attorney-client privilege, and law enforcement records pertaining to juveniles.10
Determining whether a record should be disclosed under the balancing test requires a deeper analysis of competing public policies. It may be helpful for a custodian to create a checklist of potential reasons for disclosure or nondisclosure under the balancing test that courts have previously addressed. There are no blanket exceptions under the balancing test. So it is important that custodians are aware that, even with a checklist, each record must still be contextually examined on a case-by-case basis.11
Common things to look for that weigh in favor of disclosure include whether disclosure would dispel or expose a cover-up, whether the information has previously been made public, whether the information provides public oversight for law enforcement and prosecutorial actions, and whether the records relate to inappropriate conduct or dereliction of duties.12
Common factors weighing in favor of nondisclosure include whether disclosure would revictimize crime victims or their families, would interfere with police business or reveal law enforcement techniques, or is prohibited under the Freedom of Information Act. For personnel records, relevant factors also include whether disclosure would result in a loss of morale, cause unfair damage to an employee’s reputation, or make it difficult to attract qualifying candidates from entering the workforce.13
Comply with Statutory Notice Requirements
Once a custodian decides to permit access to a record under the Public Records Law, written notice must be provided to the subject of the records if 1) the records pertain to an investigation into a disciplinary matter; 2) the records were obtained through a subpoena or search warrant; or 3) the records were prepared by an employer other than an authority and contain information relating to an employee of that employer.14 The notice must be served via certified mail or personal service and must inform the record subject of his or her right to seek a court order to restrain the authority from releasing the records.
To expedite the notice process, it is a good idea to have a form letter available that can quickly be served on the record subject. Attaching a copy of the records at issue is a good way to ensure that the record subject knows precisely what is going to be released and may assuage any concerns the record subject has regarding the release.
The record subject has 10 days after receipt of the notice to file an action in circuit court to preclude the authority from releasing the records. If 12 days have passed since the service of the notice, and no action has been filed, the authority is permitted to release the requested records.
The only other situation in which an authority is required to provide notice is if an authority decides to “permit access to a record containing information related to a record subject who is an officer or employee of that authority holding a local public office or a state public office....”15 There is no right to seek a court order to restrain an authority from releasing records under this subsection; however, the record subject, within five days of receiving the notice, is permitted to augment the record to be released with written comments and selected documentation.
Ensure That Anything Not Disclosed is Identified in the Response Letter
Oral requests for records can be responded to orally. However, a request made in writing must be responded to in writing. If any record is redacted, the custodian must make sure that the written response identifies not only what information was redacted but also why it was redacted. If the redactions are statutorily prescribed, a simple reference to the applicable statute will suffice. If the redactions are made under the balancing test, the public policy reason for the nondisclosure must be provided as well.16
It is important that every reason that information is redacted from a record is laid out in the response letter. If a reason for nondisclosure is not set forth before a requester files a petition for a writ of mandamus, an authority may be estopped from arguing that reason before the court. A court can, but need not, consider statutory reasons for nondisclosure, even if these reasons are not set forth before the initiation of the mandamus action.17
If any redactions are made, the requester must also be informed that the determination to redact is subject to review by filing a petition for a writ of mandamus action under Wis. Stat. section 19.37(1), or on application to the attorney general or the district attorney.
Ensure That Records Are Preserved
An authority to which a records request is made has an obligation to preserve any responsive records until after the request is complied with. If a requester is denied access to the records, for whatever reason, the records may not be destroyed until at least 60 days, excluding weekends and legal holidays, after the request was denied.18 If a petition for a writ of mandamus is filed, the records may not be destroyed until the conclusion of that litigation.19
Conclusion
There are many intricacies in the Public Records Law that are obviously outside the scope of this article. Hopefully, however, these broad rules of thumb will assist government attorneys in making sure their clients are in the best possible position to capably and efficiently comply with the requirements of Wisconsin’s Public Records Law.
Watch for the author’s article on how to comply with Wisconsin’s Open Meetings Law in the December 2015 Wisconsin Lawyer.
Endnotes
1 Journal/Sentinel v. Aagerup, 145 Wis. 2d 818, 822, 429 N.W.2d 772 (Ct. App. 1988).
2 Hempel v. City of Baraboo, 2005 WI 120, ¶ 28, 284 Wis. 2d 162, 699 N.W.2d 551.
3 Wis. Stat. § 19.34.
4 Wis. Stat. §§ 943.38, 946.72.
5 State ex rel. Gehl v. Connors, 2007 WI App 238, ¶ 20, 306 Wis. 2d 247, 742 N.W.2d 530.
6 Wis. Stat. § 19.35(4)(a).
7 Wis. Dep’t Justice, Wisconsin Public
Records Compliance Outline 13 (Sept. 2012).
8 WIREdata Inc. v. Village of Sussex (WIREdata II), 2008 WI 69, ¶ 56, 310 Wis. 2d 397, 751 N.W.2d 736.
9 Milwaukee Journal Sentinel v. Wisconsin Dep’t of Admin., 2009 WI 79, ¶ 56, 319 Wis. 2d 439, 768 N.W.2d 700.
10 Wis. Stat. §§ 19.36(5), (10)(a), (11), (13), 43.30, 48.396, 51.30, 118.125(1)(d), 146.82, 905.03, 938.398; 42 U.S.C. § 405(c)(2)(C)(viii)(I).
11 Milwaukee Journal Sentinel v. Wisconsin Dep’t of Admin, 2009 WI 79, ¶ 56, 319 Wis. 2d 439.
12 Hempel, 2005 WI 120, ¶ 68, 284 Wis. 2d 162; Kroeplin v. DNR, 2006 WI App 227, ¶ 47, 297 Wis. 2d 254, 725 N.W.2d 286; Linzmeyer v. Forcey, 2002 WI 84, ¶¶ 4, 25, 254 Wis. 2d 306, 646 N.W.2d 811; Zellner v. Cedarburg Sch. Dist. (Zellner I), 2007 WI 53, ¶ 53, 300 Wis. 2d 290, 731 N.W.2d 240; Wisconsin Public Records Compliance Outline, supra note 7, at 35.
13 Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 167-168 (2004); Hempel, 2005 WI 120, ¶¶ 73-77, Linzmeyer, 2002 WI 84, ¶ 33, Kraemer Bros. v. Dane Cnty., 229 Wis. 2d 86, 103, 599 N.W.2d 75 (Ct. App. 1999); Wisconsin Public Records Compliance Outline, supra note 7, at 35.
14 Wis. Stat. § 19.356(2)(a).
15 Wis. Stat. § 19.356(9)(a).
16 Chvala v. Bubolz, 204 Wis. 2d 82, 86-87, 552 N.W.2d 892 (Ct. App. 1996)
17 Journal Times v. City of Racine Bd. of Police & Fire Comm’rs, 2015 WI 56, ¶ 76, 362 Wis. 2d 577, 866 N.W.2d 563 (citing State ex rel. Blum v. Board of Education, 209 Wis. 2d 377, 388, 565 N.W.2d 140 (Ct. App. 1997)).
18 Wis. Stat. §§ 19.35(5), 19.345.
19 Id.
