2003 Wisconsin Act 47

An Act to renumber and amend 230.13 (3); to amend 19.34 (1), 19.36 (3), 19.36 (7) (a), 59.20 (3) (a), 61.25 (5), 62.09 (11) (f), 230.13 (1) (intro.) and 233.13 (intro.); and to create 19.32 (1bg), (1de), (1dm), (2g) and (4), 19.345, 19.356, 19.36 (10) to (12), 196.135, 230.13 (3) (b) and 808.04 (1m) of the statutes; relating to: access to public records and granting rule-making authority.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Joint Legislative Council prefatory note: This bill is recommended by the Joint Legislative Council's Special Committee on Review of the Open Records Law. The special committee was directed to review the Wisconsin Supreme Court decisions in Woznicki v. Erickson and Milwaukee Teachers' Educational Association v. Milwaukee Board of School Directors and recommend legislation implementing the procedures anticipated in the opinions, amending the holdings of the opinions, or overturning the opinions. In addition, the special committee was directed to recommend changes in the open records law to accommodate electronic communications and to consider the sufficiency of an open records request and the scope of exemptions to the open records law.

In Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), the Wisconsin Supreme Court held that there is no blanket statutory or common law exception under the open records law that will prevent public access to public employee disciplinary or personnel records. The court stated that these records are subject to the balancing test under which the custodian of the records determines whether permitting inspection would result in harm to the public interest outweighing the legislative policy recognizing the public interest in record inspection. Because the privacy and reputational interests of the school district employee in this case were implicated by the potential release of records, the court held that the employee had the right to judicial review of the decision to release the records. This conclusion necessitated the holding that the record custodian could not release the records without notifying the employee of the pending release and allowing a reasonable amount of time for the employee to appeal the decision to release the records. In Milwaukee Teachers' Education Association v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999), the court formally extended to any public employee the right to notice about, and judicial review of, a custodian's decision to release information implicating the privacy or reputational interests of the individual public employee. However, in these cases, the court did not establish any criteria for determining when privacy or reputational interests are affected or for providing notice to affected parties. Further, the logical extension of these opinions is that the right to notice and the right to judicial review may extend to any record subject, regardless of whether the record subject is a public employee.

This bill partially codifies Woznicki and Milwaukee Teachers'. In general, the bill applies the rights afforded by Woznicki and Milwaukee Teachers' only to a defined set of records pertaining to employees residing in Wisconsin. As an overall construct, records relating to employees under the bill can be placed in the following 3 categories:

1. Employee-related records that may be released under the general balancing test without providing a right of notice or judicial review to the employee record subject.

2. Employee-related records that may be released under the balancing test only after a notice of impending release and the right of judicial review have been provided to the employee record subject.

3. Employee-related records that are absolutely closed to public access under the open records law.

47,1 Section 1. 19.32 (1bg), (1de), (1dm), (2g) and (4) of the statutes are created to read:

19.32 (1bg) "Employee" means any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority.

(1de) "Local governmental unit" has the meaning given in s. 19.42 (7u).

(1dm) "Local public office" has the meaning given in s. 19.42 (7w), and also includes any appointive office or position of a local governmental unit in which an individual serves as the head of a department, agency, or division of the local governmental unit, but does not include any office or position filled by a municipal employee, as defined in s. 111.70 (1) (i).

(2g) "Record subject" means an individual about whom personally identifiable information is contained in a record.

(4) "State public office" has the meaning given in s. 19.42 (13), but does not include a position identified in s. 20.923 (6) (f) to (gm).

Note: This Section:

1. Creates a definition of the term "employee" to mean any public sector or private sector employee, other than an individual holding a local public office or a state public office.

2. Creates a definition of the term "local public office" that incorporates the definition of the term "local public office" contained in s. 19.42 (7w), stats. The latter statutory provision states that a "local public office" means any of the following offices:

a. An elective office of a local governmental unit.

b. A county administrator or administrative coordinator or a city or village manager.

c. An appointive office or position of a local governmental unit in which an individual serves for a specified term, except a position limited to the exercise of ministerial action or a position filled by an independent contractor.

d. The position of member of the board of directors of a local exposition district not serving for a specified term.

e. An appointive office or position of a local government which is filled by the governing body of the local government or the executive or administrative head of the local government and in which the incumbent serves at the pleasure of the appointing authority, except a clerical position, a position limited to the exercise of ministerial action, or a position filled by an independent contractor.

Section 19.42 (7w), stats., and s. 19.32 (1dm), stats., as created in this bill, specifically refer to certain appointive offices or positions of a local governmental unit. The obvious purpose is to provide that an individual who holds an upper level governmental office or position and who has broad discretionary authority may not seek judicial review in order to prevent the release of records that name that individual. The description of an appointive office or position of a local governmental unit contained in s. 19.32 (1dm), stats., is broader than the description contained in s. 19.42 (7w), stats. For example, unlike the definition contained in s. 19.42 (7w), stats., the definition in the proposed statute includes the offices of police chief and fire chief, positions whose incumbents do not serve for a statutorily specified term, may be removed only for cause, and are not appointed by the governing body of a local government. Section 111.70 (1) (i), stats., defines the term "municipal employee" to mean an individual employed by a municipal employer other than an independent contractor, supervisor, or confidential, managerial, or executive employee.

3. Creates a definition of the term "record subject" to mean an individual about whom personally identifiable information is contained in a record.

4. Creates a definition of the term "state public office" to mean the numerous agency positions listed in ss. 19.42 (13) and 20.923, stats. However, the provision specifically excludes from the definition a position in the Legislative Council staff, the Legislative Fiscal Bureau, and the Legislative Reference Bureau. Thus, a person in one of these positions may have a right of judicial review before a record in which the person is named may be released.

47,2 Section 2. 19.34 (1) of the statutes is amended to read:

19.34 (1) 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. The notice shall also separately identify each position of the authority that constitutes a local public office or a state public office. This subsection does not apply to members of the legislature or to members of any local governmental body.

Note: Generally, under current law, an authority having custody of a public record must adopt, prominently display, and make available for inspection and display at its offices a notice containing a description of its organization and the established times and places at which the public may obtain information and access to records in the custody of the authority. The notice must also identify the legal custodian of the records and the costs of obtaining copies of the records. Such notice, obviously, is for the guidance of members of the public who may wish to request copies of open records.

This Section additionally requires the notice to separately identify each position of the authority that in its opinion constitutes a local public office or a state public office as defined in s. 19.32 (1dm) and (4), stats. [See Section 1 of the bill.]

47,3 Section 3. 19.345 of the statutes is created to read:

19.345 Time computation. In ss. 19.33 to 19.39, when a time period is provided for performing an act, whether the period is expressed in hours or days, the whole of Saturday, Sunday, and any legal holiday, from midnight to midnight, shall be excluded in computing the period.

Note: This Section provides that Saturday, Sunday, and any legal holiday will be excluded in measuring time periods under the open records law.

47,4 Section 4. 19.356 of the statutes is created to read:

19.356 Notice to record subject; right of action. (1) Except as authorized in this section or as otherwise provided by statute, no authority is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject, and no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.

(2) (a) Except as provided in pars. (b) and (c) and as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit access to a record specified in this paragraph, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on any record subject to whom the record pertains, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under subs. (3) and (4). This paragraph applies only to the following records:

1. A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer.

2. A record obtained by the authority through a subpoena or search warrant.

3. A record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information.

(b) Paragraph (a) does not apply to an authority who provides access to a record pertaining to an employee to the employee who is the subject of the record or to his or her representative to the extent required under s. 103.13 or to a recognized or certified collective bargaining representative to the extent required to fulfill a duty to bargain or pursuant to a collective bargaining agreement under ch. 111.

(c) Paragraph (a) does not apply to access to a record produced in relation to a function specified in s. 106.54 or 230.45 or subch. II of ch. 111 if the record is provided by an authority having responsibility for that function.

(3) Within 5 days after receipt of a notice under sub. (2) (a), a record subject may provide written notification to the authority of his or her intent to seek a court order restraining the authority from providing access to the requested record.

(4) Within 10 days after receipt of a notice under sub. (2) (a), a record subject may commence an action seeking a court order to restrain the authority from providing access to the requested record. If a record subject commences such an action, the record subject shall name the authority as a defendant. Notwithstanding s. 803.09, the requester may intervene in the action as a matter of right. If the requester does not intervene in the action, the authority shall notify the requester of the results of the proceedings under this subsection and sub. (5).

(5) An authority shall not provide access to a requested record within 12 days of sending a notice pertaining to that record under sub. (2) (a). In addition, if the record subject commences an action under sub. (4), the authority shall not provide access to the requested record during pendency of the action. If the record subject appeals or petitions for review of a decision of the court or the time for appeal or petition for review of a decision adverse to the record subject has not expired, the authority shall not provide access to the requested record until any appeal is decided, until the period for appealing or petitioning for review expires, until a petition for review is denied, or until the authority receives written notice from the record subject that an appeal or petition for review will not be filed, whichever occurs first.

(6) The court, in an action commenced under sub. (4), may restrain the authority from providing access to the requested record. The court shall apply substantive common law principles construing the right to inspect, copy, or receive copies of records in making its decision.

(7) The court, in an action commenced under sub. (4), shall issue a decision within 10 days after the filing of the summons and complaint and proof of service of the summons and complaint upon the defendant, unless a party demonstrates cause for extension of this period. In any event, the court shall issue a decision within 30 days after those filings are complete.

(8) If a party appeals a decision of the court under sub. (7), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by law. An appeal shall be taken within the time period specified in s. 808.04 (1m).

(9) (a) Except as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit access to a record containing information relating to a record subject who is an officer or employee of the authority holding a local public office or a state public office, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on the record subject, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under par. (b).

(b) Within 5 days after receipt of a notice under par. (a), a record subject may augment the record to be released with written comments and documentation selected by the record subject. Except as otherwise authorized or required by statute, the authority under par. (a) shall release the record as augmented by the record subject.

Note: This Section:

1. Creates s. 19.356 (1), stats., to limit Woznicki by stating that, except as otherwise provided, no person is entitled to notice or judicial review of a decision of an authority to provide a requester with access to a record.

2. Creates s. 19.356 (2), stats., to provide that if an authority decides to permit access to certain records, the authority must, before permitting access and within 3 days after making the decision to permit access, serve written notice (personally or by certified mail) of that decision on any record subject to whom the records pertain. The reference to s. 19.35, stats., indicates that the authority must continue to apply the open records law balancing test before deciding to release the record. The records to which this notice applies includes only: (a) any record containing information relating to an employee that is created or kept by the authority as the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer; (b) any record obtained by the authority through a subpoena or search warrant; or (c) any record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information. The notice requirement is not applicable in the following circumstances:

a. An authority provides access to a record, pertaining to an employee, to the employee who is the subject of the record, to his or her representative, or to his or her bargaining representative.

b. An authority releases a record produced for equal rights, discrimination, or fair employment law compliance purposes.

3. Creates s. 19.356 (3) to (8), stats., to provide that within 5 days after receipt of a notice of the impending release of a record, the record subject may provide written notification to the authority of the record subject's intent to seek a court order restraining release of the record. The legal action must be commenced within 10 days after the record subject receives notice of release of the record. During this time, the authority is prohibited from providing access to the record and must not provide access until any legal action is final. The court must issue its decision within 10 days after the legal action has been commenced, unless a party demonstrates cause for extension of this period. However, the court must issue a decision within 30 days after commencement of the proceedings. Also, a court of appeals must grant precedence to an appeal of a circuit court decision over all other matters not accorded similar precedence by law. An appeal must be taken within 20 days after entry of the judgment or order appealed from. [See Section 14.]

4. Creates s. 19.356 (4), stats., to provide that a requester may intervene in the action as a matter of right.

5. Creates s. 19.356 (6), stats., to provide that a court may prevent release of a record by applying substantive common law principles construing the right to inspect, copy, or receive copies of records. In general, this standard often requires a balancing of public harm and public benefit in the release of a record, rather than balancing private harm against public benefit.

6. Creates s. 19.365 (9), stats., to provide that an authority must notify a record subject who holds a local public office or a state public office of the impending release of a record containing information relating to the employment of the record subject. The record subject, within 5 days of the receipt of the notice, may augment the record to be released with written comments and documentation selected by the record subject. The authority shall release the augmented record, except as otherwise authorized or required by statute.

47,5 Section 5. 19.36 (3) of the statutes is amended to read:

19.36 (3) Contractors' records. Each Subject to sub. (12), each authority shall make available for inspection and copying under s. 19.35 (1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under s. 19.35 (1) (am).

Note: See the note to Section 7.

47,6 Section 6. 19.36 (7) (a) of the statutes is amended to read:

19.36 (7) (a) In this section, "final candidate" means each applicant for a position who is seriously considered for appointment or whose name is certified for appointment and whose name is submitted for final consideration to an authority for appointment to any state position, except a position in the classified service, or to any local public office, as defined in s. 19.42 (7w). "Final candidate" includes, whenever there are at least 5 candidates for an office or position, each of the 5 candidates who are considered most qualified for the office or position by an authority, and whenever there are less than 5 candidates for an office or position, each such candidate. Whenever an appointment is to be made from a group of more than 5 candidates, "final candidate" also includes each candidate in the group.

Note: Section 19.36 (7), stats., generally provides that, if an applicant for a position indicates in writing a desire for confidentiality, an authority may not provide access to any record relating to the application that may reveal the applicant's identity. This general provision does not apply to a final candidate for any local public office "as defined in s. 19.42 (7w)". Because the bill expands the definition of the term "local public office" in s. 19.32 (1dm), stats., as created in this bill, this Section applies the expanded definition to the issue of confidential applications for purposes of consistency. [For a discussion of the term "local public office" see the note to Section 1 of the bill.]

47,7 Section 7. 19.36 (10) to (12) of the statutes are created to read:

19.36 (10) Employee personnel records. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35 (1) to records containing the following information, except to an employee or the employee's representative to the extent required under s. 103.13 or to a recognized or certified collective bargaining representative to the extent required to fulfill a duty to bargain under ch. 111 or pursuant to a collective bargaining agreement under ch. 111:

(a) Information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an employee, unless the employee authorizes the authority to provide access to such information.

(b) Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.

(c) Information pertaining to an employee's employment examination, except an examination score if access to that score is not otherwise prohibited.

(d) Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments, or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees.

(11) Records of an individual holding a local public office or a state public office. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35 (1) to records, except to an individual to the extent required under s. 103.13, containing information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an individual who holds a local public office or a state public office, unless the individual authorizes the authority to provide access to such information. This subsection does not apply to the home address of an individual who holds an elective public office or to the home address of an individual who, as a condition of employment, is required to reside in a specified location.

(12) Information relating to certain employees. Unless access is specifically authorized or required by statute, an authority shall not provide access to a record prepared or provided by an employer performing work on a project to which s. 66.0903, 103.49, or 103.50 applies, or on which the employer is otherwise required to pay prevailing wages, if that record contains the name or other personally identifiable information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information. In this subsection, "personally identifiable information" does not include an employee's work classification, hours of work, or wage or benefit payments received for work on such a project.

Note: This Section creates s. 19.36 (10) to (12), stats., to provide that an authority may not provide access to any of the following:

1. Information prepared or provided by an employer concerning the home address, home email address, home telephone number, or social security number of an employee, unless the employee authorizes the authority to provide access to the information.

2. Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.

3. Information pertaining to an employee's employment examination, except an examination score if access to that score is not otherwise prohibited.

4. Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments, or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees.

5. Information maintained, prepared, or provided by an employer concerning the home address, home email address, home telephone number, or social security number of an individual who holds an elective public office or a state public office, unless the individual authorizes the authority to provide access to such information. This provision does not apply to the home address of an individual who has been elected or to the home address of an individual who, as a condition of employment, is required to reside in a specified location.

6. A record prepared or provided by an employer, performing under a contract requiring the payment of prevailing wages, that contains personally identifiable information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information. The term "personally identifiable information" does not include information relating to an employee's work classification, hours of work, or wage or benefit payments received for work on such projects.

47,8 Section 8 . 59.20 (3) (a) of the statutes is amended to read:

59.20 (3) (a) Every sheriff, clerk of the circuit court, register of deeds, treasurer, register of probate, clerk and county surveyor shall keep his or her office at the county seat in the offices provided by the county or by special provision of law; or if there is none, then at such place as the board directs. The board may also require any elective or appointive county official to keep his or her office at the county seat in an office to be provided by the county. All such officers shall keep their offices open during the usual business hours of any day except Sunday, as the board directs. With proper care, the officers shall open to the examination of any person all books and papers required to be kept in his or her office and permit any person so examining to take notes and copies of such books, records, papers or minutes therefrom except as authorized in par. (c) and s. ss. 19.36 (10) to (12) and 19.59 (3) (d) or under ch. 69.

Note: Section 59.20 (3) (a), stats., provides that certain county officers must open to the examination of any person all books and papers required to be kept in his or her office and permit any person examining the records to take notes and copies of the books, records, papers, or minutes except as otherwise provided. The officers to which this requirement applies are every sheriff, clerk of the circuit court, register of deeds, treasurer, register of probate, clerk, and county surveyor. This provision has been interpreted by Wisconsin's courts to mean that a requester has the absolute right to inspect records required to be kept by law by these officers unless: (a) there is a statutory exception to this right; (b) there is a constitutional provision preventing release of the record; or (c) a court, exercising its inherent authority over judicial records, prevents access to a record when the administration of justice so requires. [See State ex rel. Journal Co. v. County Court for Racine County, 43 Wis. 2d 297, 168 N.W.2d 836 (1969); State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 334 N.W.2d 252 (1983); and State ex rel. Schultz v. Bruendl, 168 Wis. 2d 101, 483 N.W.2d 238 (Ct. App. 1992).]

In order to take into account the treatment of employee-related records in this bill, this Section amends s. 59.20 (3) (a), stats., to provide that county officers must, to the extent provided by current statutes, keep their records open to inspection, except as provided under proposed s. 19.36 (10) to (12), stats.

47,9 Section 9 . 61.25 (5) of the statutes is amended to read:

61.25 (5) To be the custodian of the corporate seal, and to file as required by law and to safely keep all records, books, papers or property belonging to, filed or deposited in the clerk's office, and deliver the same to the clerk's successor when qualified; to permit, subject to subch. II of ch. 19, any person with proper care to examine and copy any of the same, and to make and certify a copy of any thereof when required, on payment of the same fees allowed town clerks therefor.

Note: This Section amends s. 61.25 (5), stats., to clarify that a village clerk must comply with all aspects of the open records law, including the provisions of the bill relating to employee-related records.

47,10 Section 10 . 62.09 (11) (f) of the statutes is amended to read:

62.09 (11) (f) The clerk shall keep all papers and records in the clerk's office open to inspection at all reasonable hours subject to subch. II of ch. 19.

Note: This Section amends s. 62.09 (11) (f), stats., to clarify that a city clerk must comply with all aspects of the open records law, including the provisions of the bill relating to employee-related records.

47,10m Section 10m. 196.135 of the statutes is created to read: