Supreme Court Orders

The Wisconsin Supreme Court will hold public hearings on Dec. 16 regarding judicial court commissioners and on Jan. 13, 1998, regarding electronic data dissemination and retaining court records. The hearings will be held at 1:30 p.m. on both dates in the Supreme Court Room in the State Capitol, Madison, Wis.

The court also has amended several supreme court rules regarding judicial administration.

Electronic Data Dissemination

In the Matter of Amendment of Supreme Court Rules: (Proposed) SCR Chapter 75 - Electronic Data Dissemination

Order 96-16

At the public hearing May 6, 1997, on the petition of the Director of State Courts requesting the adoption of rules governing access to and release of electronic database information in the courts, the Hon. Gary L. Carlson, on behalf of the petitioner, submitted a revised petition. Following the public hearing, the court held the matter in abeyance for further consideration, inviting interested persons to comment on the matter. The court has reviewed the comments filed and has determined that a public hearing on the revised petition is advisable.

IT IS ORDERED that a public hearing on the revised petition submitted May 6, 1997, by the Director of State Courts shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Jan. 13, 1998, at 1:30 p.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the revised petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 22nd day of September, 1997.

By the court:
Marilyn L. Graves, Clerk

SCR CHAPTER 75
RULES GOVERNING ELECTRONIC DATA DISSEMINATION
FOR THE COURTS OF WISCONSIN

SCR 75.01 Purpose and Scope.

(1) This chapter governs access to and release of electronic court database information and applies to circuit courts, appellate courts and to the director of state courts office. These rules are to be administered in the context of the Wisconsin Open Records Law, which states that:

"[A]ll 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."

These rules do, however, distinguish between information about the workings of government and its officials and information the government has on private individuals.

(2) These rules do not apply to:

(a) requests initiated by or with the consent of the chief justice, chief judge of the court of appeals, or the director of state courts to respond to the internal business of the courts;

COMMENT: "Internal business of the courts" includes, but is not limited to, case management and jury management information.

(b) the verbatim record of a court hearing until a certified transcript has been filed with the court.

[No comparable provision]

(Suggested)(c) electronic court database information made available to the public at terminals provided by the courts.

COMMENT: These rules are not intended to impede local access to data that is provided on local, court-provided public access terminal.

(3) Duties and responsibilities of custodians of court records under the Wisconsin Open Records Law have not changed except as specifically noted in this chapter. A custodian of a record may choose to provide information beyond what is required by rule or statute if to do so would advance the mission of the court. Such efforts do not obligate the custodian to similar efforts on subsequent occasions.

(4) Each circuit court and appellate court may promulgate local rules governing the procedures, responsible officials or staff and production, retention, and distribution schedules of electronic database information consistent with these or other supreme court policies or rules.

SCR 75.02 Definitions.

In this chapter:

(1) "Ad hoc report" means a compilation of aggregate or court official-specific data created on a single or non-recurring basis at the direction of the director of state courts, chief judge of a judicial administrative district, district court administrator, clerk of circuit court, chief judge or presiding judge of the court of appeals, chief justice of supreme court, or clerk of supreme court and court of appeals.

(2) "Custodian" means the person responsible for the safekeeping of records held by a court. In the circuit court the clerk of the circuit court is the presumptive custodian. In the appellate court and supreme court the clerk of supreme court and court of appeals is the presumptive custodian. Temporary handling of records is not custodianship.

(3) "New record or report" means any re-ordering, sorting, compilation, or tabulation of existing data not regularly generated through routine reports or previously generated through an ad hoc report. To the extent that a search of electronically stored records is available through public access terminals, the information obtained shall not be considered a new record or report.

(4) "Record" means the electronic representation of court information stored within a computer system that may be generated electronically and transformed into a comprehensible form. This definition incorporates s. 19.32(2), Wis. Stats., as it relates to the electronic representation of court information.

(5) "Routine report" means a compilation of data created on a recurring basis for court use; may be aggregate or court official-specific.

SCR 75.03 Standards.

The following standards shall be adhered to:

(1) Public access is prohibited to records that are closed pursuant to statute, case law, rule, or other authority; or to court records that would personally identify the following:

(a) jurors, whether before or after service;

(b) victims; and

(c) witnesses, unless they have testified in open court.

COMMENT: Because technology makes it feasible to compile numerous electronic database records into a dossier on an individual, this section creates an exception to the Wisconsin Open Records Law for certain court records involving jurors, victims, and witnesses because of the special circumstances of these court participants and their right to privacy. Personally identifiable information includes, but is not limited to, name, address, telephone number, and social security number.

(2) No person may disclose information pertaining to other than their own jurisdiction unless the custodian of the original record has previously disclosed the information or consented to the disclosure.

(3) Requests for copies of information will be granted using only the technology or outside resources deemed necessary by the custodian of the record. If programs exist to permit copying, requests for computer-based information may be granted using only the type, style and format of diskette, tape, or other medium compatible with the court technology and supplied by the court.

COMMENT: The record custodian should disclose information using the medium that is most available to the custodian. Because of security and data integrity concerns, the court record custodian must provide the medium to prevent computer viruses or other technological problems.

(4) A custodian need not provide access to routine reports that are customarily released on a recurrent schedule except according to that schedule.

(5) Someone requesting to view court information on-line shall be granted reasonable use of an available public access terminal during regular office hours.

(6) Unregulated access to a court database by non-court personnel is prohibited. Authorized direct access is provided through public access terminals, data links or other electronic means.

(7) In shared governmental systems, agreements shall be negotiated and signed by the parties relative to what information generated by one party may be disseminated by the other party or parties involved in the data sharing without notice to the originating agency.

COMMENT: Because of an increase in data sharing among governmental agencies, this section mandates that written agreements address what types of shared information can be disclosed to other agencies or to the public.

(8) The director of state courts or other records custodians may enter into agreements with commercial providers of access services to disseminate records that are otherwise open under this chapter. If the agreement would involve connection to equipment owned or provided by the supreme court, the director of state courts shall be notified and must approve the plan before a connection is made.

(Suggested) (8) The director of state courts or other records custodians may enter into nonexclusive agreements with other entities to fulfill an open records request or to disseminate records.

If the agreement would involve connection to equipment owned or provided by the supreme court, the director of state courts shall be notified and must approve the plan before a connection is made.

(Suggested) COMMENT: This provision is not intended to permit a custodian to enter into agreements whereby a commercial provider or other entity becomes the de facto provider of the record in place of or on behalf of the custodian.

SCR 75.04 Procedure.

(1) Except for access provided under agreements under 75.03(7) and (8), requests for records shall be in writing and must include:

(a) information identifying the requester, including the name, telephone number, and address, if any, of where the electronic record is to be sent;

(b) a specific and detailed description of the information requested; and

(Suggested) (1) All written requests for records must include:

(a) information identifying the requester, including the name, telephone number, and address, if any, of where the electronic record is to be sent;

(b) a reasonable description of the information requested; and

(c) the format requested.

COMMENT: The telephone number is specifically requested so that a custodian who needs clarification can telephone the requester. The name and address are specifically requested so that a denial, which must be in writing, can be sent to the requester. "Address" may be an electronic address.

(2) If the request is unclear, or stated in terms inconsistent with the form and manner of data maintained by the custodian, the custodian may request clarification from the requester. If the request remains ambiguous or if accurate retrieval of the information is not possible, the request may be denied. If, according to local rule, certain requests are to be granted or denied by another authority within the jurisdiction, the request form must be forwarded immediately to that authority. Denials shall be in writing to the requester and shall state the reason or reasons for denial as well as contain notice of the right to appeal and the procedures to follow in making the appeal.

[No comparable provision.]

(Suggested) (a) If a records custodian denies a request for a record, the requesting party may appeal the decision in writing within 30 calendar days of the denial to the director of state courts or a designee. The director of state courts or the designee may consult with appropriate authorities and must respond to the appeal within 10 working days. Nothing in this section limits a requester's right, under s. 19.37, Wis. Stats. or any other provision to seek review of a records custodian's decision.

COMMENT: The appeal procedure may be used by requesters seeking review short of bringing a circuit court case.

(3) When presented with a request for information not generated by that custodian, the first choice of a custodian shall be to refer the requester to the presumptive custodian of the record. A custodian cannot, however, refuse access to a record on the basis that the record is available from another source. If access is provided by the secondary custodian, that custodian shall inform the presumptive custodian of the request and the fact that access was granted.

COMMENT: As a matter of courtesy, if a secondary custodian makes an independent determination and grants access, they are to provide notification to the presumptive custodian.

(4) Requests for circuit court information

(a) Request for information concerning a single county. When presented with a request for circuit court information that is generated or stored in a county as well as the director of state courts office, the clerk of circuit court may either provide access or request that the director of state courts office provide access. If the director of state courts office declines the clerk's request, the clerk of circuit court shall maintain the custodial responsibility for determining an appropriate level of access and fees.

COMMENT: The option of allowing the clerk of circuit court to request that the director of state courts office provide access is to accommodate the common occurrence where a requester, seeking statewide circuit court information, makes an individual records request to each clerk of circuit court in the state.

(b) Request for information concerning more than one county. Requests for information concerning more than one county or statewide circuit court information should be directed to the director of state courts office.

(5) Requests for supreme court and court of appeals information. Requests for information concerning the supreme court and court of appeals shall be directed to the clerk of supreme court and court of appeals.

(6) Information shall be provided as soon as practicable and without delay, consistent with the conduct of governmental business. If the record cannot be provided within ten (10) working days, no later than the end of that period the custodian shall respond to the requester in writing explaining the reason for the delay and giving an estimated time of completion.

COMMENT: The ten-day period is consistent with
interpretation of the "reasonable" time frame under the Open Records Law for responding to requests.

(Suggested) (6) Information shall be provided as soon as practicable and without delay, consistent with the conduct of governmental business. [Remainder, including Comment, stricken.]

(7) If a request is made for information on a computer medium, the custodian shall provide the medium.

COMMENT: To address security and data integrity concerns, the court record custodian must provide the medium in order to prevent computer viruses or other technological problems.

(8) Information disseminated in an electronic medium shall be accompanied by a disclaimer regarding certification and accuracy which shall be in substantially the following language:

Disclaimer: The custodian has made a reasonable effort to ensure that data/records are up-to-date, accurate, complete, and comprehensible at the time of disclosure. Authenticated information is only accurate as of the time of authentication. The court is not responsible for data that is misinterpreted or changed by anyone. Tampering with public records is a felony under s. 946.72, Wis. Stats.

COMMENT: The disclaimer reminds requesters of their responsibility to use public records wisely and that any effort to tamper with records could be prosecuted as a crime.

SCR 75.05 Procedure for Requests for Special Programming of New Records or Reports

(1) Requests for special programming to create new records or reports shall comply with all requirements of 75.04(l). Requests related to a circuit court shall be directed to the custodian of the record, who will consult with the director of state courts office. Requests involving multiple jurisdictions or the state as a whole shall be directed to the director of state courts office. Requests involving the supreme court or court of appeals shall be directed to the clerk of supreme court and court of appeals.

(2) In determining whether to grant or deny special programming requests, the following criteria are to considered:

a) availability of data;

b) specificity of the request;

c) potential for infringement of personal privacy;

d) potential for effect on ongoing business;

e) the advantage to the court in providing the information through programming as opposed to manual means.

(Suggested)(2) In determining whether to grant or deny special programming requests, the following criteria are to be considered:

a) availability of data;

b) specificity of the request;

c) potential for infringement of personal privacy;

d) potential for effect on ongoing business; and

e) the relative ease to the custodian of providing the information through programming as opposed to manual means.

COMMENT: The "potential for infringement of personal privacy" criteria acknowledges that the compilation of numerous electronic database records could more adversely affect an individual's privacy than the existence of numerous open paper files that are unlikely to be compiled into a dossier.

SCR 75.06 Uniform Fee Schedule.

(1) A uniform fee schedule is established for circuit and appellate courts and the director of state courts office. Fees are payable to the court or office that provides the record, information, or service at the time the record, information, or service is provided, except that prepayment may be required if the total amount exceeds $5.00 as provided in s. 19.35(3)(f), Wis. Stats.

(2) The fee is a combination of the cost of medium; personnel time; mail or delivery cost; and cost of special programming.

(a) Cost of medium. Copies are made of court records only. The term "copies" includes the original production.

1. paper: $1.25 per sheet.

2. microfiche: $1.00 per card.

3. audiotape: $5.00 per tape.

4. videotape: $15.00 per tape.

5. diskette: $15.00 per diskette.

6. Compact Disk (CD): $40.00 per CD.

(Suggested)(a) Cost of medium. Copies are made of court records only. The term "copies" includes the original production.

1. paper: $1.25 per page.

2. microfiche: $1.00 per card.

3. audiotape: $3.00 per tape.

4. videotape: $5.00 per tape.

5. diskette: $2.00 per diskette.

6. Compact Disk (CD): $10.00 per CD.

(b) Personnel time. The fee for personnel time to copy an audiotape, videotape, diskette, or compact disk is the actual cost. For other copying, there is no fee for the first 15 minutes of personnel time. The fee for time beyond the first 15 minutes is charged in 15-minute increments for any part thereof. Personnel time is charged at the actual cost, including wages and benefits, for the least expensive employee capable of identifying and providing the record.

(c) Mail or delivery cost. The fee for mailing or delivery is the actual cost and shall include necessary transmittal between courts or offices for which a public or private carrier is used.

(d) Cost for special programming. The fee for special programming will be determined by the custodian of the record on a case-by-case basis after investigation and justification of actual, necessary and direct costs for materials, equipment, staff, mailing or other justifiable location costs or required resources.

(3) Fees may be waived for government agencies or at the discretion of the custodian.

(Suggested)(3) Fees may be waived in whole or in part for government agencies or at the discretion of the custodian.

COMMENT: The fee schedule reflects the variety of media in which copies might be made and the cost of each. The costs for personnel time, mail or delivery costs, and special programming provide more specific guidance to the "actual, necessary, and direct" costs of providing records outlined in the Wisconsin Open Records Law.

SCR 75.06 Review of Rules

(Suggested)SCR 75.07 Review of Rules

The director of state courts or his or her designee shall review the rules under this chapter annually and report to the supreme court any recommendations for their modification.

COMMENT: Because of rapidly evolving technology, it is prudent to have in place a mechanism for regular review and revision of these rules.

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