Secretary
William J. Raftery, CPA
State Controller
State of Wisconsin
Department of Administration
September 25, 2003
The Honorable, The Legislature:
This report is transmitted as required by sec. 20.002(11)(f) of the Wisconsin Statutes, (for distribution to the appropriate standing committees under sec. 13.172(3) Stats.), and confirms that the Department of Administration has found it necessary to exercise the "temporary reallocation of balances" authority provided by this section in order to meet payment responsibilities and cover resulting negative balances during the month of August 2003.
On August 1, 2003, the Information Technology Investment Fund cash balance closed at its monthly low of a negative $1.0 thousand. This negative balance continued until August 21, 2003, when the balance closed at zero. The negative balance was due to the difference in the timing of revenues and expenditures.
On August 1, 2003, the General Fund cash balance closed at a negative $664.6 million. The negative balance continued through August 31, 2003, when the fund cash balance closed at a negative $400.5 million. The General Fund closed at an intramonth low of a negative $757.3 million on August 13, 2003.
On August 12, 2003, the Agricultural Chemical Cleanup Fund cash balance closed at its monthly low of a negative $22.0 thousand. This negative balance continued until August 15, 2003, when the balance closed at a positive $10.0 thousand. The negative balance was due to the difference in the timing of revenues and expenditures.
On August 15, 2003, the Tobacco Settlement Endowment Fund cash balance closed at its monthly low of a negative $3.7 million. This negative balance continued until August 19, 2003, when the balance closed at a zero. The negative balance was due to the difference in the timing of revenues and expenditures.
The Information Technology Investment Fund, the General Fund, the Agricultural Chemical Cleanup Fund, and the Tobacco Settlement Fund shortfalls were not in excess of the statutory interfund borrowing limitation and did not exceed the balances of the funds available for interfund borrowing.
The distribution of interest earnings to investment pool participants is based on the average daily balance in the pool and each fund's share. Therefore, the monthly calculation by the State Controller's Office will automatically reflect the use of these temporary reallocations of balance authority, and as a result, the funds requiring the use of the authority will effectively bear the interest cost.
Sincerely,
Marc J. Marotta
Secretary
Referred to the joint committee on Finance.
State of Wisconsin
Department of Justice
October 14, 2003
The Honorable, The Senate:
The Senate Committee on Organization ("Committee") has requested my opinion concerning the application of two recent Wisconsin Supreme Court decisions to requests under the Wisconsin public records statute, Wis. Stat. ss.
19.31-
19.39, for mailing or distribution lists of physical or street addresses, e-mail addresses or phone numbers compiled and used by individual legislators for official business. Because lists of street addresses and phone numbers must ordinarily be coupled with an individual name in order to be meaningful or useful, I assume that the Committee's questions refer to the individual's name as well.
The Committee poses a series of questions that may fairly be summarized as follows:
1. Wisconsin Stat. s.
19.35(1)(a) provides in relevant part: "Except as otherwise provided by law, any requester has a right to inspect any record." Are legislators' mailing or distribution lists "records" which must be disclosed to the public if requested pursuant to Wis. Stat. s.
19.35(1)(a)?
2. Assuming the record custodian determines that such lists are subject to disclosure, must the persons whose addresses or telephone numbers are contained on the list be provided with the notice required by the Woznicki and Teachers' Ed. Ass'n cases and given an opportunity to challenge the release in court prior to actual release of the record?
Under current law, the first question can only be answered by the courts after applying the common law balancing test articulated in
State ex rel. Youmans v. Owens, 28 Wis. 2d 672,
137 N.W.2d 470,
139 N.W.2d 241 (1965) and succeeding cases. Based on current Wisconsin precedent, however, it is my opinion that the courts would conclude that the records must be disclosed, unless the custodian, applying the balancing test, articulates specific factual circumstances warranting a determination that the public interest in withholding the records outweighs the public interest in releasing them. With regard to the second question, in my opinion the answer is no because neither the Legislature nor the Wisconsin courts have extended the
Woznicki notice procedure beyond the context of employee records.
The Committee's questions arise in the context of recent requests, directed to individual legislators, for copies of e-mail distribution lists compiled by those legislators for the purpose of distributing electronic newsletters to constituents and other private citizens. Accordingly, I limit my discussion and answers to the Committee's questions to the context of legislators' mailing or distribution lists containing addresses or phone numbers of private citizens.
Plainly, lists of names and street or e-mail addresses and phone numbers, compiled by individual legislators and used for official purposes, are "records" within the coverage of the public records statute.
See Wis. Stat. s.
19.32(2);
Hathaway v. Green Bay School Dist.,
116 Wis. 2d 388, 393-94,
342 N.W.2d 682 (1984). The statute clearly states the general presumption that all public records are open to the public.
Wis. Newspress v. Sheboygan Falls Sch. Dist.,
199 Wis. 2d 768, 776,
546 N.W.2d 143 (1996). There are no blanket exceptions to the presumption of openness, except for those created by statute or by the common law.
Id. at 780.
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Absent a statutory or common law exception, a balancing test must be applied in every case in order to determine whether a particular record should be released.
Id.;
Woznicki, 202 Wis. 2d at 183. Under the common law balancing test, the record custodian and, if necessary, the court must determine whether the public interest in disclosure is outweighed by the public interest in keeping the record confidential.
See Osborn v. Board of Regents, 2002 WI 83,
254 Wis. 2d 266, ¶ 14,
647 N.W.2d 158.
There is no common law exception for lists of names, addresses and phone numbers, nor is there a general statutory exception in the public records statute limiting the release of such personal identifying information as names, street addresses, telephone numbers or e-mail addresses. In fact, at least one statute, Wis. Stat. §
19.71, clearly contemplates that lists of names and addresses
are subject to disclosure under the public records statute. That statute, entitled "sale of names or addresses," provides: "An authority may not sell or rent a record containing an individual's name or address of residence, unless specifically authorized by state law.
The collection of fees under s. 19.35(3) is not a sale or rental under this section." The italicized language makes clear that disclosure of names and street addresses under the public records statute is
not a "sale or rental" prohibited under Wis. Stat. §
19.71, clearly implying that such information is generally available under the public records law.
Moreover, the existence of specific statutes expressly limiting the release of "personal identifiers," including names, telephone numbers and street and e-mail addresses, in particular circumstances strongly supports the inference that there is no general statutory exception that would justify maintaining the confidentiality of legislators' mailing and distribution lists. For example, under a newly enacted statutory exception to the public records statute itself, home addresses, home telephone numbers and home e-mail addresses of state employees may not be disclosed by an agency authority unless the employee authorizes access to this personal information.
See 2003 Wisconsin Act 47, sec. 7, creating Wis. Stat. s.
19.36(10)(a) (effective August 26, 2003). A full interpretation of the newly created exceptions to disclosure set forth in Wis. Stat. s.
19.36(10)(a) is beyond the scope of this opinion. However, statutory exceptions must be narrowly construed and this new exception is plainly limited to information compiled by an "employer" in relation to an "employee."
See id. Accordingly, there is no basis for a claim that the new exception set forth in Wis. Stat. s.
19.36(10)(a) covers information relating to private citizens compiled and maintained by legislators in their capacity as elected officials.
See also, Wis. Stat. s.
23.45, created by
1999 Wisconsin Act 88 (regulating disclosure of certain computer-generated lists by the Department of Natural Resources).
Furthermore, Wis. Stat. s.
895.50, creating a statutory right of privacy in Wisconsin, provides no direct support for a claim that individual privacy interests foreclose release of legislators' mailing and distribution lists. Rather, Wis. Stat. s.
895.50(2)(c) cautions that "[i]t is
not an invasion of privacy to communicate any information available to the public as a matter of public record." Instead, the "protection of privacy and reputational interests . . . plays an integral role" in the application of the common law balancing test itself.
See Woznicki, 202 Wis. 2d at 202 (Abrahamson, J., dissenting).
Thus, whether lists of street or e-mail addresses and phone numbers compiled by legislators must be disclosed under the Wisconsin public records statute depends on application of the balancing test. See Youmans, 28 Wis. 2d at 682; Woznicki, 202 Wis. 2d at 183-84. It is, therefore, incumbent upon the custodian of the records in the first instance to balance all interests of the public bearing on both sides of the calculus, both those favoring disclosure and those opposing disclosure. Nonetheless, current Wisconsin precedent offers some guidance on how the courts are likely to resolve the question whether legislators' mailing and distribution lists are public records that must be disclosed.
Street Addresses. In Wisconsin, there is considerable precedent requiring disclosure of lists of names and street addresses under the public records law, absent a statutory exception or a particularized demonstration of the need to maintain confidentiality in the specific case. In
Hathaway, for example, the supreme court held that a computer-generated list of names and addresses of parents with children enrolled in the school district had to be disclosed to the requester because the custodian had failed to state specific, sufficient reasons to the contrary.
Id., 116 Wis. 2d at 404.
See also 68 Op. Att'y Gen. 68 (1979) (mailing lists compiled by the Department of Natural Resources subject to inspection and copying); 61 Op. Att'y Gen. 297 (1972) (waiting lists for vocational school programs).
Cf. Atlas Transit, Inc. v. Korte, 2001 WI App 286,
249 Wis. 2d 242,
638 N.W.2d 625 (public's right to know names and commercial driver's license numbers of all bus drivers transporting children for the Milwaukee School District outweighed "slight invasion" of drivers' privacy from release of that information).
Although some Wisconsin cases have upheld limitations on the release of home addresses of public employees even before the creation of Wis. Stat. s.
19.36(10)(a), these cases illustrate the need for a particularized showing that the public interest supports withholding the records.
See, e.g., Morke v. Record Custodian,
159 Wis. 2d 722,
465 N.W.2d 235 (Ct. App. 1990) (list of names, addresses and phone numbers of prison employees withheld from disclosure based on the institution's interest in ensuring safety inside and outside the prison boundaries and in encouraging persons to serve as prison employees);
State ex rel. Journal/Sentinel, Inc. v. Arreola,
207 Wis. 2d 496,
558 N.W.2d 670 (Ct. App. 1996) (trial court order releasing records relating to the use of deadly force by police officers modified to require redaction of the individual officers' home addresses based on privacy interests and public safety concerns).
Cf. U.S. Dept. of State v. Ray,
502 U.S. 164, 176 n.12 (1991) (emphasizing that disclosure of a list of names and other identifying information is not inherently or necessarily a significant threat to the privacy of the individuals on the list; the significance or insignificance of the threat to privacy depends upon the characteristics revealed by virtue of being on the particular list and the consequences likely to ensue).
Home Telephone Numbers. There is a less well-developed body of precedent on the question whether lists of home telephone numbers are subject to disclosure under the public records statute. However,
Morke demonstrates that personal telephone numbers can be withheld under the balancing test based upon a particularized showing of possible harm to the public interest, including concern for safety and institutional security.
Id., 159 Wis. 2d at 726-27.
See generally State ex rel. Pflaum v. Psych. Examining Bd.,
111 Wis. 2d 643, 646,
331 N.W.2d 614 (Ct. App. 1983) (in affirming discovery order requiring disclosure of names, addresses and phone numbers of particular individuals, the court observed that disclosure did not implicate those persons' constitutional right to privacy);
cf.
Wisconsin Professional Police Ass'n v. PSC,
205 Wis. 2d 60, 70 n.6,
555 N.W.2d 179 (Ct. App. 1996) (citing factual evidence to support commission finding that there is no general societal expectation or norm that a person placing a telephone call has the right to remain anonymous).
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E-mail addresses. It is fair to say that courts and legislatures are currently struggling to apply existing statutes, including public records and freedom of information statutes, to the exploding technology of the Internet. At this juncture, there are no Wisconsin cases directly addressing whether a distribution list of e-mail addresses may be withheld from disclosure under the public records law based on concern for the privacy rights of those persons to whom the e-mail addresses belong, nor has our research discovered any cases from other jurisdictions that analyze the issue.
Cf. n.2, above, citing
Reno, 521 U.S. at 855 n.20.
Furthermore, courts in other jurisdictions appear to treat privacy concerns with differing degrees of respect, depending on whether the basis for the claimed right of privacy is statutory or constitutional. In Wisconsin, however, the statutory right of privacy does not directly affect the duties of record custodians based on Wis. Stat. s.
895.50(3). Assuming the courts treat e-mail address lists consistently with the lists of names, street addresses and telephone numbers, it is likely that disclosure of e-mail distribution lists will be required, absent a specific statutory exception or a showing of particularized harm to the public interest from release of such records.
Cf. Morke, 159 Wis. 2d at 726-27.
The Committee has also asked about the application of the Woznicki and Teachers' Ed. Ass'n cases to the mailing and distribution lists at issue here, assuming the record custodian determines that such lists are subject to disclosure in the first instance. In those cases, the Wisconsin Supreme Court has held that a public employee has the right to be notified and to seek judicial review of a custodian's decision to disclose information that may implicate the privacy or reputational interests of that employee. See Woznicki, 202 Wis. 2d at 192-95 (records held by the district attorney); Teachers' Ed. Ass'n, 227 Wis. 2d at 782, 798-99 (extending Woznicki remedy to all cases implicating the privacy or reputational interests of an individual public employee, "regardless of the identity of the record custodian").
As restated above, the Committee's second question is whether the
Woznicki and
Teachers' Ed. Ass'n remedy applies to release of mailing and distribution lists compiled by legislators for purposes of communicating with constituents and other private citizens. Based on
2003 Wisconsin Act 47, sec. 4, creating Wis. Stat. s, 19.356, enacted since the Committee requested my opinion on this issue, the answer to this question is clearly no. Wisconsin Stat. s.
19.356 represents the legislative response to the
Woznicki and
Teachers' Ed. Ass'n cases and is expressly intended to limit and clarify the scope of the remedy created in
Woznicki. See generally Note of the Joint Legislative Council following
2003 Wisconsin Act 47, sec. 4.
Under newly created Wis. Stat. s.
19.356(2)(a), an authority is required to provide "record subjects,"
see Wis. Stat. s.
19.32(2g), created by
2003 Wisconsin Act 47, sec. 1, with written notice of a decision to release records in only three defined circumstances, two of which relate directly to the employment context.
See Wis. Stat. s.
19.356(2)(a)1. and
3. The remaining instance in which notice is now required is limited to records obtained by an authority pursuant to a subpoena or a search warrant.
See Wis. Stat. s.
19.356(2)(a)2. Moreover, the statute now expressly provides that notice is
not required and that no person is entitled to judicial review of a decision to provide access to a record "[e]xcept as authorized in this section or as otherwise provided by statute." Wis. Stat. s.
19.356(1). Plainly, therefore, the new statute does not require that a
Woznicki-type notice be provided in the case of a legislator's decision to release mailing or distribution lists
.
I note as well that the limitations in the new statute, Wis. Stat. s.
19.356(2), are consistent with post-
Woznicki precedent, which did not extend the notice requirement beyond the context of privacy or reputational interests of public employees or employees of public contractors.
See Kraemer Brothers, Inc. v. Dane County,
229 Wis. 2d 86,
599 N.W.2d 75 (Ct. App. 1999);
Atlas Transit,
249 Wis. 2d 242.
I conclude, therefore, that if a legislator custodian decides that a mailing or distribution list compiled and used for official purposes must be released under the public records statute, the persons whose names, addresses or telephone numbers are contained on the list are not entitled to notice and the opportunity to challenge the decision prior to release of the record.
Sincerely,
Peggy A. Lautenschlager
Attorney General
State of Wisconsin
Claims Board
October 15, 2003
The Honorable, The Senate:
Enclosed is the report of the State Claims Board covering the claims heard on September 26, 2003.
The amounts recommended for payment under $5,000 on claims included in this report have, under the provisions of s.
16.007, Stats., been paid directly by the Board.
The Board is preparing the bill(s) on the recommended award(s) over $5,000, if any, and will submit such to the Joint Finance Committee for legislative introduction.
This report is for the information of the Legislature. The Board would appreciate your acceptance and spreading of it upon the Journal to inform the members of the Legislature.
Sincerely,
John E. Rothschild
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on September 26, 2003, upon the following claims:
Claimant Agency Amount
1. Steve R. Scheel Agriculture, Trade $85.95
& Consumer Protection
2. Spencer & Revenue $3,995.59
Alvern Calvert
3. Daniel Erkkila Revenue $5,000.00
4. Lawrence & Revenue $380.00
Irene Frisch
5. Shivette M. Griffin Corrections $635.55
6. Bruce M. Mohs Justice $12,726,000.00
7. Pastori M. Balele Corrections $5,000.00
In addition, the following claims were considered and decided without hearings:
Claimant Agency Amount
8. Linda Kilgore Corrections $8,578.89
9. Mary Converse- Corrections $40.00
Turner
10. Federal Liaison Revenue $2,601.18
Services
11. Rosa Lee Williams Revenue $252.00
12. Joyce Gulbronson State Fair Park $178.64
The Board Finds:
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1. Steve R. Scheel
of Marshall, Wisconsin claims $85.95 for cost of replacing milk gaskets, which was allegedly incurred because of inappropriate behavior by a DATCP inspector. The claimant alleges that during a routine inspection at his dairy farm on Thursday, July 11, 2002, a DATCP inspector pointed out that the gaskets in the milk receive jar were dirty. The claimant states that he informed the inspector that the dairy supply company was coming for a regularly scheduled visit the following Monday, July 15, and that he would have the gaskets replaced at that time without incurring the additional visit charge. The claimant alleges that the inspector told him that he could not wait until July 15 and had to replace the gaskets by the next day or she would cut him off from the Grade A market. The claimant called the supply company and had the gaskets replaced the next day. The claimant does not believe the inspector had the right to give him only one day to replace the gaskets. He also believes that the inspector should have made note of the gasket issue on her inspection report, but she did not. The claimant requests payment of the $85.95 cost to replace the gaskets and also requests interest on that amount from July 11, 2002.
DATCP recommends denial of this claim. During the July 11 inspection, DATCP's inspector found the claimant's receiver jar gaskets dirty and in poor repair. The claimant told the inspector that he would have the gaskets replaced on July 15. DATCP alleges that, based on the claimant's voluntary compliance to replace the gaskets on July 15, the inspector did not list the problem on the July 11 inspection report and did not issue any Notice of Intent to Suspend the claimant's license. DATCP states that the cost of replacing receiver jar gaskets is a routine business expense relating to maintaining equipment. DATCP therefore does not feel the state should reimburse the claimant for these costs.
The Board concludes the claim should be paid in the reduced amount of $70.00 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Agriculture, Trade & Consumer Protection appropriation s.
20.115(1)(a), Stats.
2. Spencer and Alvern Calvert of Deforest, Wisconsin claim $3,335.59 for overpayment of income taxes. Spencer Calvert's wages were certified by DOR in order to satisfy an estimate assessment for 1995 income taxes. The claimant states that he had a very difficult time obtaining copies of his old W2 forms because two of his former employers were out of business. He also states that he had a difficult time getting information from the Social Security Administration and that they told him his requests were not a priority. The claimant states that, because of these delays, he did not get copies of his W2s until 2002 and that, in the meantime, DOR garnisheed his wages. The claimant alleges that once the judgment was satisfied and the garnishment was complete, DOR told him that he would receive a refund. The claimant believes that the delay in getting this matter resolved was the fault of the Social Security Administration and that he should be refunded his $3,995.59 overpayment.
DOR recommends denial of this claim. In March and July of 1999 DOR sent letters to Mr. Calvert requesting that he file a 1995 income tax return. DOR issued an estimated assessment for the 1995 taxes on January 17, 2000. The claimants filed an appeal of the assessment on March 14, 2000. On April 18, the claimants submitted information to DOR but it was insufficient to adequately resolve the issue. At that time, Mr. Calvert told DOR that he had submitted a 1995 return. DOR informed him that there was no record of any 1995 return and again requested that he submit a copy of the return. DOR also notified him that failure to respond within 30 days would result in the denial of his appeal. DOR did not receive any reply to this letter and issued a notice of denial of the appeal on June 26, 2000. DOR records indicate that between October 2000 and November 2002, the claimant and/or his representatives phoned DOR several times. DOR responded by sending additional copies of the assessment and explaining several times what the claimant needed to submit in order to resolve the matter. DOR states that it is unable to retrieve W2 information which it receives from employers. DOR initiated certification of Mr. Calvert's wages. The certification was suspended twice in order to give the claimants additional time to obtain the required information, only to have the deadlines pass each time without DOR receiving the requested documents. DOR records indicate that the claimants submitted a copy of Mr. Calvert's 1995 social security income statement on January 22, 2002, which was within the two-year statute of limitations. On October 2, 2002, Mr. Calvert filed his 1995 income tax return as a full year WI resident, showing a net tax liability of $1350. If the claimant had filed his 1995 return in a timely fashion, he would have received a $216 refund. Section
71.75(5), Stats. prohibits DOR from refunding the claimants' $3,995.59 overpayment since no refund was claimed within the prescribed two year time period. The statute of limitations for requesting this refund expired on June 26, 2002. The claimants would have been within the new four-year statute of limitations if it had applied to their claim.
The Board concludes the claim should be paid in the amount of $3,995.59 based on equitable principles. The Board further concludes, under authority of s.
16.007 (6m), Stats., payment should be made from the Department of Revenue appropriation s.
20.566 (1)(a), Stats.
3. Daniel Erkkila of Superior, Wisconsin claims $5,000.00 for money garnisheed to pay allegedly overdue income tax returns. The claimant states that all taxes for the years in question were filed with H & R Block. The claimant alleges that when DOR contacted him, he tried to resolve the matter by phone but that the personnel at DOR were not helpful and would not explain to him how to fix the problem. The claimant states that DOR garnisheed over $10,000 from his wages, which caused him great financial hardship, including losing his apartment because he could not afford to pay his rent. Finally, the claimant states that he did not owe anywhere near the amount that was taken from his checks and he believes that DOR should reimburse him for the overpayment.
DOR recommends denial of this claim. DOR records indicate that on August 4, 2000, DOR sent a mailed request to the claimant that he file WI income tax returns for 1995 through 1998. DOR sent this request in response to information from the IRS that showed the claimant had filed his 1999 federal return using a WI address (a 1999 WI tax return was also filed). DOR did not receive any response from the claimant to this request and therefore issued an estimated assessment on October 9, 2000, which was due December 11, 2000. On February 7, 2001, at an informal hearing, the claimant phoned and promised to file the returns by March 9, 2001. However, in April 2001 DOR only received copies of the claimant's 1995 federal and MN returns. DOR sent the claimant another letter explaining the need for a completed residency questionnaire and copies of the 1996-1998 returns. Because the claimant failed to do so, DOR began certifying his wages in July 2001. DOR records show that, beginning in August 2001, the claimant would phone the department and DOR would again explain to him what was needed to resolve the account. DOR did not receive the required information until March 16, 2003. Based on this information, DOR determined that the claimant was not a WI resident for 1995 and 1996, that he owed WI taxes of $1073 for 1997 and that his income was below the filing requirement in 1998. DOR disputes the claimant's allegation that DOR personnel were unresponsive and uncooperative. DOR's case notes for the file show that with each and every contact, DOR employees fully explained to the claimant what was required to resolve the issue. Finally, because the two-year statute of limitations for filing a claim for refund of overpayment expired on October 9, 2002, section 71.75(5) prohibits DOR from making any refund to the claimant.
