Public Records Law: Superintendents & Public Records Requests

Welcome to Part 2 of our series on the many facets of public records law, and public records requests, that a superintendent needs to know about.

Originally shared at this summer’s WASDA New Superintendents Academy, this is a topic that Kirk Strang likes to cover every year in an effort to ensure that superintendents have the latest information on public records law.

In Part 1 of the series, we tackled the following public records law topics:

• 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

In Part 2, we’re diving into responding to a public records request, and communicating the decision. 

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)
3. Determine the cost of fulfilling your request.

   1. Cost of location.
      A school district may impose a fee for locating a requested record if the cost is $50 or more. The fee may not exceed the “actual, necessary and direct cost of location.”
      — Wis. Stat. § 19.35(3)(c).

      To calculate this fee, use the hourly wage of the lowest-paid employee able/authorized to search the body of records in which the requested record is located.

   2. Cost of reproduction.
      A school district may charge no more than the “actual, necessary and direct cost of reproduction.”
      — Wis. Stat. § 19.35(3)(a).

      In calculating the estimated cost of reproduction, the district may include factors such as:

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

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

      The Attorney General’s Office has found that most standard charges for the reproduction of records far exceed the estimated cost of reproduction.
      Many school districts charge 20 cents per page.
      The Attorney General’s Office found, however, that reproduction actually costs 1 cent per page.

      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.

This brings us to the close of our series on public records law and public records requests. Our next series, Student Speech and the First Amendment, covers topics like student speech and expression, student handbooks, student use of technology, and more.

Additional articles that might be of interest:

• School District Governance, Part 3: Developments in Federal & Constitutional Law
• Restraint & Seclusion in Wisconsin Schools: Case Studies, Compliance, Training & More