July 1, 2015 – When you or a client wants to make a public records request or attend a governmental meeting, you need more than the statutes. You need insight. Learn the nuances and implications with the Wisconsin Public Records and Open Meetings Handbook, by Melanie Rutledge and Peter Block of the Milwaukee City Attorney’s Office and newly supplemented for 2015.

How Would You Advise This Client?

One morning, a longtime client stops by your office with a draft letter in hand. He wants your opinion on whether he should send it. The topic is outside your area of expertise, but you feel compelled to give him a solid answer.

Here’s the letter:

Dear State Senator Smith: Can you help me? My neighbor, Officer Jones, never seems to go to work. I don’t mind paying my fair share of taxes, but I don’t think my tax dollars should go to pay a shirker. Can you tell me how many vacation days he’s taken this year?

Sincerely, Constituent Brown

P.S. Please don’t tell anybody that I asked; he thinks I’m harassing him and that’s totally not true.

What Should You Tell Him?

The first question is whether Constituent Brown might be able to get the records. The answer lies in Wisconsin’s Public Records Law, sections 19.31–.39 of the Wisconsin Statutes, and in court interpretations of the statutes. There is no blanket exception for personnel records under the Public Records Law.¹ Nor is the blanket withholding of all law-enforcement personnel records justified. But records custodians and courts will engage in a balancing test, comparing the harm to the public from the disclosure of the records to the benefit to the public of opening the records to examination.

While these records are almost certainly public, the situation is complicated because the draft letter’s contents suggest that Constituent Brown has a history of harassing Officer Jones. That Brown is Jones’s neighbor would ordinarily be irrelevant, as is most information about a requester of records.² But because Jones’s safety might be at issue, Brown’s identity and relationship to Jones can be taken into account.³

There are further complications. Only the authority or individual with custody of public records can give access to them. Senator Smith is not custodian of the personnel records of municipal police department employees. Constituent Brown must ask Officer Jones’s employer’s records custodian, presumably someone in the city’s police or human resources department. So the request must be sent there.

Moreover, and unfortunately for Constituent Brown’s request for secrecy, Smith is custodian of correspondence she receives from the public. So if Jones (or anyone else) learns of such a letter and asks to see it, Smith likely must provide it (after engaging in the balancing test described above).⁴

Learn from the Experts

Authors Melanie Rutledge and Peter Block rely on their many years’ experience with the Milwaukee City Attorney’s Office for the in-depth discussions of every topic, such as how to make and respond to requests for records (including law enforcement records) under the Public Records Law, or how to comply with the notice requirements (and many other provisions) of the Open Meetings Law.

Available Now in Print or via Books UnBound

The Wisconsin Public Records and Open Meetings Handbook is available to members for $129 in print and electronically for $149 via PINNACLE’s interactive online library, Books UnBound^™.

For more information about this product or other PINNACLE publications, visit the WisBar Marketplace or contact the State Bar at (800) 728-7788 or (608) 257-3838.

Endnotes

¹ Wisconsin Public Records and Open Meetings Handbook § 4.9.

² Id. § 2.6.

³ See Ardell v. Milwaukee Bd. of Sch. Dirs., 2014 WI App 66, 354 Wis. 2d 471, 849 N.W.2d 894 (review denied).

⁴ John K. MacIver Inst. for Public Policy, Inc. v. Erpenbach, 2014 WI App 49, 354 Wis. 2d 61, 848 N.W.2d 862.