In this two part series, we’re covering the many facets of public records law, and public records requests, that a superintendent needs to know about.
This information was originally shared during this summer’s WASDA New Superintendents Academy, and it’s something Kirk typically covers every year in order to ensure that superintendents have the latest information on public records law.
In Part 1 of the series, we’re covering public records law as it pertains to:
- Mandatory posting requirements
- Responding to a public records request
- Defining, exactly, what a “record” is
- What to do when you receive a records request
- Evaluating the records request
MANDATORY POSTING REQUIREMENT
“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).
A school district must display this notice. A district can lose a challenge to its response to a public records request based solely on its failure to display this notice.
RESPONDING TO A PUBLIC RECORDS REQUEST
The superintendent is the district’s records custodian unless the board specifically identifies a different person as records custodian. This means that you have 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, however, 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.
- Individual school board members are the custodians of their own public records.
- 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 would not wish to disclose (e.g., employment investigations).
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
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.
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:
- Drafts, notes, preliminary computations and like materials prepared for the originator’s personal use.
- Personal property unrelated to the custodian’s office.
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:
- 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. - 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. 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).
- 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.
- Determine whether a statute or court decision indicates that the record must be disclosed or, alternatively, cannot be disclosed.
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.
- Examples of grounds for maintaining the confidentiality of a record include competitive or bargaining reasons, or employee confidentiality.
- Remember, it is the competing public interests in play that one must balance and account for.
This brings us to the end of Part 1 of our series. Next up, we’ll continue diving into public records law, and public records requests, with a focus on: responding to a public records request, and communicating the decision.
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