Last fall, Kirk Strang spoke at the Wisconsin Technical College System’s Legal Issues Conference. The two main topics he covered were public records law and open meetings law.
Kirk typically shares his insights about these topics annually to help keep Wisconsin school districts up to date on best practices — and to help new superintendents, administrators and faculty get up to speed with both public records and open meetings law.
- Part 1 — Public Records Law
- Mandatory posting requirement
- What is a “record?”
- What to do when you receive a records request
- Part 2 — Public Records Law
- Evaluating the records request
- Responding to a public records request
- Communicating the decision
- Part 3 — Open Meetings Law
- The basic rules of compliance
- Part 4 — Open Meetings Law
- Open meetings law myths
Part 1 — Public Records Law
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 technical college must display this notice. An authority can lose a challenge to its response to a public records request based solely on its failure to display this notice.
WHAT IS A “RECORD?”
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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.
- 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
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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.
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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 that meet a particular description, this literally would require a dragnet review of records in every building. Such a request requires clarification.
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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.
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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.
This brings us to the end of Part 1 of this series. Part 2 will continue the discussion about public records law, shifting the focus to evaluating the records request, responding to a public records request, and communicating the decision.