August 15, 2024
Legal Issues Conference:

Wisconsin Public Records & Open Meetings Law, Part 2

WI Public Records Law Legal Issues Conference

In the fall of 2023, Kirk Strang spoke at the Wisconsin Technical College System’s Legal Issues Conference — covering the topics of public records law and open meetings law.

In Part 1 of the series we covered public records law and the mandatory posting requirement, and also answered the following questions: what is a “record,” and what to do when you receive a records request.

Here’s an overview of the rest of the series …

  • 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 2 — Public Records Law

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.
    2. Employees and those 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. 
      An authority 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. 
      An authority 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, it 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.

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.

We hope the first two parts of this series have been beneficial to better understanding public records law. In Part 3, we’ll shift our attention to open meetings law, specifically the basic rules of compliance.

© 2022, Strang Law LLC