Government Authorities Must Pay For Redaction Costs under Public Records Law

By Joe Forward, Legal Writer, State Bar of Wisconsin

June 27, 2012 – The Wisconsin Supreme Court recently clarified that government entities must pay for redaction costs when someone wants access to public records.

But a majority of the court believes the Wisconsin Legislature should revisit the issue to address the time and costs of large requests involving volumes of data.

The public records law (Wis. Stat. chapter 19, subchapter II) grants public access to government records, but also requires redaction of sensitive information like social security numbers.

Two Milwaukee Journal Sentinel reporters requested police reports from the Milwaukee Police Department for periods between 2009 and 2010. The police department released some records, but ultimately rejected requests unless the newspaper paid approximately $4,200 for the staff time required to redact sensitive information from those reports.

The newspaper sued, arguing that the City of Milwaukee was required to pay those costs. The law, Wis. Stat. section 19.35(3), states that a government authority may impose costs for locating, reproducing, transcribing, photos, photo processing, and mailing or shipping.

But the law does not say anything about costs for redaction, and it has long been the opinion of the attorney general’s office that the government is required to pay redaction costs.

Thus, in Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65 (June 27, 2012), the Wisconsin Supreme Court reversed a circuit court order that required the newspaper to pay.

“If the legislature had wanted to allow an authority to impose fees for a range of tasks, or if it had wanted to include the task of redaction as a task for which fees may be imposed, it would have said so. It did not,” wrote Chief Justice Shirley Abrahamson in a lead opinion.

The chief justice noted the purpose of the law – open access to records – and the possibility that imposing redaction fees could detract or prevent requesters from accessing records.

The lead opinion also references a 1983 Attorney General opinion, by then-A.G. Bronson La Follette, stating that government agencies must bear the cost of redaction since there is no provision in the law to impose those costs on the person or entity that requests records.

The court rejected the city’s argument that two Wisconsin cases allow recovery of redaction fees and the legislature has allowed those cases to stand without amending the law.

Concurrences

While all justices agreed that the circuit court’s order should be reversed in favor of the Milwaukee Journal Sentinel, two concurrences were filed to note the potential implications of the ruling and to suggest that the legislature should reconsider the implications.

Justice Patience Roggensack filed a concurrence – joined by Justices David Prosser, Annette Ziegler, and Michael Gableman – to point out two potential problems with the court’s decision: The large costs involved with voluminous requests and a shortage of staff to meet demands.

“The lead opinion’s decision today is driven by those policies that the legislature articulated in the Public Records Law,” Justice Roggensack wrote.

“However, the statutes enacted to further those policies did not anticipate voluminous record requests such as those that the Journal Sentinel and others have made recently,” she wrote.

Justice Prosser wrote a separate concurring opinion to further highlight his perceived implications of the ultimate ruling and the need for the legislature to “reexamine the law.”

“We live in an information age,” Justice Prosser wrote. “Taxpayers are paying for the accumulation of vast amounts of data. Now taxpayers may have to pay to give that data away so that others can make a profit.”

Attorneys

Robert Dreps of Godfrey & Kahn, Madison, represented the Milwaukee Journal Sentinel. Milwaukee City Attorney Grant Langley and Assistant City Attorney Melanie Swank represented the City of Milwaukee and Milwaukee Police Department.

The League of Wisconsin Municipalities filed an amicus brief.