October 26, 2022

Everything Superintendents Need to Know About Public Records Laws

School Superintendents & Public Records Law

Did you know our nation’s first education laws were enacted in the colonial era? And it wasn’t until the 1930s that the first superintendents were appointed. 

Given the complexity of the seemingly endless bodies of law our modern-day schools have to comply with, it’s hard to believe there was ever a time when superintendents weren’t there to lead school districts. As practitioners of school law, we understand just how challenging — and essential — a superintendent’s job is.

On this point, Kirk Strang recently spoke at the WASDA First Year Superintendents Academy about public records laws. It’s one of the ways our firm supports Wisconsin superintendents, making new information readily available and digestible, so superintendents can spend more time leading, and less time reading through legal speak.

Here’s a recap of the presentation, which focused on public records law topics like:

  • What to do when you receive a records request
  • Evaluating the records request
  • Responding to a public records request

There’s a lot to cover, so let’s dive into public records laws …

Mandatory Posting Requirements

“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.”

— Wis. Stat. § 19.34(1).

Why this is Important

Making this information available to the public is mandatory and a school district must display this notice. It’s important to note that a district can lose a challenge to its response to a public records request because of its failure to display this notice.

General Best Practices

  1. Have records retention and records request policies that comply with state law.
     
  2. Review your retention policies and verify that you have what you think you do (e.g., the Public Records Board schedule for record retention/destruction).

    Wis. Stat. § 19.21(6) provides that a school district may provide for the destruction of obsolete school records. However, the district must give 60 days’ notice in writing of any such destruction to the state historical society (the historical society may waive this requirement upon application).

    A school district must retain records for not less than seven years, unless a shorter period is fixed by the Public Records Board; however, to rely on a shorter period established by the Public Records Board, the school district must have adopted or adopt the Public Records Board’s schedule for destruction of public records.
     

  3. Inservice and share information about record making and retention practices to minimize the likelihood that records will be created that are not necessary and that you do not wish to disclose (e.g., employment investigations).

Responding to a Public Records Request

The superintendent is a school district’s records custodian unless the board specifically identifies a different person as records custodian. This means a superintendent has to know the basics of responding to a record request.

What is a “record?”

A record is “any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority.”

— Wis. Stat. § 19.32(2).

The materials must be created or kept in connection to the authority’s official purpose or function.

Take note that records created by and stored on personal devices can be public records.

  • The public records law does not prohibit a board member or employee from using a personal device to conduct official government business. The use of a personal device does not shield the record from the public records law’s requirements.
  • Public records created through the use of a personal device are equally subject to records retention requirements. Individuals should take care not to destroy public records on personal devices or accounts prior to the end of the retention period required by statute and should follow record retention procedures with respect to even those records.

What To Do When You Receive a Records Request

  • Confirm the request.

    Confirm that a request has been made, the date on which it was made, and what the requester is seeking.

    In some situations, it is important to have the requester begin by putting his/her request in writing before confirming its receipt, while in others it is best to simply acknowledge the request through a written confirmation.
     

  • Clarify the request, if necessary.

    Some requests cannot be understood or can be taken to have more than one meaning.

    In some situations, we need to tell a requester that their request will involve far more extensive searching and much higher costs if it is taken literally, and we need to be sure of our interpretation before proceeding with record location initiatives and charging the requester accordingly.

    For example, if someone requests “any and all” records anywhere in the district that meet a particular description, this literally would require a dragnet review of records in every building. Such a request requires clarification.
     

  • Determine if responding in batches is appropriate.

    The law requires prompt responses to record requests and, in some cases, a request has parts that are easy to fulfill and parts that will take much more work.

    If you wait until you have everything, you will often be accused of undue delay. Don’t wait for requesters to tell you what they want; ask them.
     

  • Make an initial assessment about waiving costs.

    Some requests are very small and easy to fulfill on a same day basis. In these cases, the custodian of records should affirmatively decide if waiving the fees/costs is in the public interest. This helps to make certain that the manner in which the request is processed won’t result in its own claims (e.g., of discriminatory treatment).

    Waiving charges for media representatives can be a wise choice in media relations if the cost isn’t too high. However, this decision should be made on a case-by-case basis, not by policy.

Evaluating the Records Request

  1. Determine whether the records exist.

    Be careful to conduct a proper institutional inventory. Sometimes, the records are kept in the records custodian’s office. However, sometimes the records that have been requested could be in any number of places, which affects location time and costs, and the speed of any response.

    Communicating with requesters about this can influence the request or at least blunt claims of undue delay.
     

  2. Determine whether the records meet the definition of “records.”

    Most recorded information is a “record” under the law, but there are materials that are excluded from the definition. Wis. Stat. § 19.32(2). Examples include:

    1. Drafts, notes, preliminary computations and like materials prepared for the originator’s personal use.
    2. Personal property unrelated to the custodian’s office.
       
  3. Decide whether an exclusion applies that would prevent disclosure of a record.

    Some things meet the definition of “record,” but can’t or don’t have to be disclosed. Examples include:

    1. A record containing personally identifiable information that is collected or maintained in connection with a complaint or investigation leading to certain types of legal proceedings. Wis. Stat. § 19.35(1)(am) 1.
    2. A record containing personally identifiable information that, if disclosed, would endanger life or safety, identify a confidential informant, or endanger the security of certain, specified institutions. Wis. Stat. § 19.35 § (1)(am)2.
    3. A record for which the statute limits access (examples include records made confidential by statute, law enforcement records, contractor records computer programs and data trade secrets, and law enforcement informants). See Wis. Stat. § 19.36 for a more complete listing. “Employee personnel records” are included in this category and cannot be disclosed if they concern things like home addresses, social security numbers, annual evaluations, or current investigations of crimes or employment misconduct. Wis. Stat. § 19.36(10)
       
  4. Determine whether a statute or court decision indicates that the record must be disclosed or, alternatively, cannot be disclosed.
     
  5. Conduct the required “balancing test” to determine if the public interest in disclosure of a record outweighs the public interest in non-disclosure.

    This is almost never a completely certain analysis, but issues that figure into the balancing test might include, e.g., a record that would be confidential under exemptions to the requirement that a governmental body meet in open session.

    1. Examples of grounds for maintaining the confidentiality of a record include competitive or bargaining reasons, or employee confidentiality.
    2. Remember, it is the competing public interests in play that one must balance and account for.

Responding to a Public Records Request

  1. Decide whether the record requested concerns a “record subject” and if they are entitled to notice that the record will be released.

    Notice is generally required where employees are concerned for the following types of records:

    1. Records related to the investigation of an employee for certain purposes.
    2. Records obtained through subpoena or search warrant.
    3. Records prepared about an employee by someone other than the authority.

      NOTE: A record subject’s rights to advance disclosure and the right to augment is not limited to these categories when the records concern a subject that holds a local or state public office.

  2. If the record requested concerns a “record subject” and they are entitled to notice, determine the type of record subject(s) that is/are involved.

    These situations bring other procedures into play that have to be accounted for as part of responding to the request.

    1. Types of record subjects and related records include:
      1. A record containing information about an employee that is the result of an investigation into a disciplinary matter.
      2. A record containing information about an employee that is a “local public office” holder.
      3. A student or pupil record. These records are generally confidential under FERPA and/or Wis. Stat. § 118.125. They also are usually handled differently than records that we redact as part of the process of providing access to public records. Wis. Stat. § 19.36(6), citing, Wis. Stat. § 19.35(1)(a) or (am).
    2. Employees and employees that qualify as local public office holders have procedural rights that must be accounted for before records in which they are record subjects can be disclosed.
      1. Before permitting access and within 3 days of deciding to provide access to a record, the authority shall serve written notice on the record subject (by certified mail or personal service). The notice shall describe the record and the recipient’s rights under the statute. See Wis. Stat. § 19.356(2)(a) and (9)(a).
      2. Employees have 5 days to notify the authority that they intend to start an action to prevent disclosure and 10 days to actually commence the action. Wis. Stat. § 19.356(3) and (4).
      3. A public entity cannot provide access to a record within 12 days of sending a notice under Wis. Stat. §19.356(2)(a).
      4. Employees that are also “local public office holders” have 5 days to “augment” the record to be released. Wis. Stat. § 19.356(9)(b)

Cost of Record Reproduction

  1. Determine the cost of fulfilling your request.

    A School District must charge an amount that reflects the actual cost of reproduction. In the estimated cost of reproduction, the District may include factors such as:

    • The cost of paper;
    • The cost of printer toner; and
    • The time staff members spend reproducing the record.

      Determine how much duplication really costs and incorporate a defensible price into your policy.
       

  2. The Attorney General’s Office recently found that most standard charges for the reproduction of records far exceed the estimated cost of reproduction.
    • Many school districts charge, e.g., 20 cents per page.
    • The Attorney General’s Office conducted an internal analysis of its own costs of reproduction and found that reproduction actually costs approximately 1 cent per page.
    • Although there are reasons that a state office may be able to reproduce records more cheaply, this still doesn’t explain the gap that the AG’s “experiment” demonstrated. Be prepared to defend your per page charge as the actual cost of reproduction, knowing that the AG;s offices study will be touted to discredit the amount you propose to charge.

      — Office of Open Government Advisory, Charging Fees under the Wisconsin Public Records Law (2018).

Communicating the Decision

  1. Every request gets an answer.
  2. Every denial (whether full or partial) has to provide all grounds for the denial.
  3. Every denial must provide notice of the requester’s right to apply to the district attorney or attorney general for review, or to seek review by mandamus. Wis. Stat. § 19.35(4)(b).
  4. Requesters should be notified if separate notices must be provided to record subjects.

As you can see, there’s a lot of information to digest here. We hope this summary proves helpful!