PEGGY A. LAUTENSCHLAGER
Daniel P. Bach
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
ReStartDivision of Criminal Investigation
17 West Main Street
Madison, WI 53707
BodyStart As Administrator of the Division of Criminal Investigation (“DCI”), you have been asked to respond to requests under the public records law for records related to investigations of the legislative caucuses and the Milwaukee County pension matter. Investigators interviewed public employees and public officials as part of both investigations. Section 19.356(2)(a) of the Wisconsin Statutes requires that authorities provide notice to a “record subject” before releasing certain records. The record subject then has the right to challenge the decision to release those records in court. Sec. 19.356(4), Wis. Stats. Another section of the law provides that an authority must provide notice before releasing records of public officials. Sec. 19.356(9), Wis. Stats. A public official may augment the record to be released but does not have the right to challenge the release in court. Id. You ask to what extent the law requires that you give notice.
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.
Section 19.356(2)(a) provides that if an authority decides to permit access to a record under the public records law, it must provide notice to any record subject “to whom the record pertains” but only for 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.
Section 19.32(2g) defines “[r]ecord subject” as “an individual about whom personally identifiable information is contained in a record.” Section 19.32(1bg) defines “[e]mployee” as “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.” It is not necessary to consider the definitions of local public office and state public office in this opinion. Sec. 19.32(1dm) and (4), Wis. Stats.
The Wisconsin Supreme Court has summarized the general framework for statutory interpretation:
We assume that the legislature’s intent is expressed in the statutory language. . . . Thus . . . statutory interpretation begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry. Statutory language is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning. Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning.
Applying these directions, it is clear that section 19.356(1) states the general rule: no record subject is entitled to notice or judicial review prior to release of a record pertaining to that record subject except as specifically provided. Subsections (2)(a)1., 2. and 3. require notification, but only when an authority proposes to release certain records.
Subsection (2)(a)2. is unambiguous. If DCI has obtained a record through a subpoena or a search warrant, DCI must provide the requisite notice before releasing the records. The duty to notify, however, does not require notice to every record subject who happens to be named in the subpoena or search warrant records. Under subsection (2)(a), DCI must serve written notice of the decision to release the record to “any record subject to whom the record pertains.” Similarly, subsection (1) limits the duty to notify a record subject to situations when an authority is “providing to a requestor access to a record containing information pertaining to that record subject.” The limiting phrases “pertaining to that record subject” and “to whom the record pertains” evidence a clear legislative intent to limit the universe of individuals who must be notified, because the general definition of record subject in section 19.32(2g), without the limiting phrases, would clearly require notification to any “individual about whom personally identifiable information is contained in a record.” If the Legislature had intended that notice be given to any individual about whom the record contained personally identifiable information, it would not have limited the general definition of record subject by requiring that the record “pertain” to a record subject.
Making the notice provisions apply to any individual mentioned in records obtained by subpoena or search warrant would make the limiting language of section 19.356(1) and (2)(a) surplusage, a result to be avoided. The duty to notify requires notice only to the record subject to whom the record proposed to be released pertains, for example, the person named in a subpoena or the person whose residence is the object of a search warrant. A record may “pertain” to more than one individual, but the mere fact that the record contains personally identifiable information about an individual, for example, the individual’s name, does not mean that individual is entitled to be notified that the record is proposed to be released.
Subsection (2)(a)3. requires that DCI provide notice if it is going to release a record prepared by an employer other than an authority, that is a private sector employer, if the record contains information relating to an employee of that employer, unless the employee authorizes access to the information. At first, subsection (2)(a)3. appears to be unambiguous; an authority may not release a record prepared by a private sector employer if the record contains information relating to an employee of that employer, unless the employee authorizes the release. The subsection on its face allows the private sector employee to veto the release of the information. But subsection (2)(a)1. appears to authorize an authority to release information relating to employment related matters of both public and private sector employees after providing the requisite notice. Ambiguity can be created by the interaction of two statutes. Marquardt v. Milwaukee County, 2000 WI App 77, ¶ 12, 234 Wis. 2d 294, 610 N.W.2d 496. Subsections 19.356(2)(a)3., and (2)(a)1. are rendered ambiguous because of their interaction. Because the two subsections are ambiguous, the statute’s legislative history, as well as its scope, context and purpose, may be consulted when attempting to properly interpret the statute. Kalal, 271 Wis. 2d 633, ¶¶ 47-48. Section 19.356 was created by 2003 Wisconsin Act 47. That Act was recommended by the Joint Legislative Council’s Special Committee on Review of the Open Records Law (“Committee”). A search of the Committee’s materials on file at the Legislative Reference Bureau reveals that the exact language of subsection 19.356(2)(a)3. was inserted in the legislation at the request of the Wisconsin Manufacturers and Commerce Association (“Association”) representative. (James Buchen letter of December 9, 2002.) In that letter, the Association expressed its concern that without the amendment, the legislation would treat private and public employees identically, despite the fact that public employees expect to be subject to greater public scrutiny. The letter also notes that the private employee’s employment relationship is with a private employer, not the government. Furthermore, a company or contractor, not the individual private employee, enters into an employment relationship with the governmental entity. The letter also expressed concern that without the amendment, private employers were being asked to surrender the privacy rights of their employees whenever the employer chose to contract with a governmental entity.
The letter from the Association was presented to the Committee at the Committee’s last meeting. The Committee subsequently voted to propose the legislation by mail ballot. The Staff Memorandum sent to the Committee with the mail ballot describes the legislation as providing that a private sector employee would be entitled to “notice and appeal rights regarding a record naming that employee, except that the name and other personally identifiable information relating to an employee of a prevailing wage employer will be closed to public access.” Wisconsin Legislative Council Staff Memo No. 2 (Jan. 15, 2003), at 2 (emphasis supplied).
There is no doubt that the Staff Memorandum does not accurately describe the effect of section 19.356(2)(a)3.; it also does not discuss the interaction between that subsection and subsection (2)(a)1. Because the language of subsection (2)(a)3. is on its face unambiguous, and because it was added for the specific and stated purpose of providing greater rights to private sector employees, I must conclude that to the extent there is any conflict between subsection (2)(a)3. and subsection (2)(a)1., subsection (2)(a)3. trumps subsection (2)(a)1. I realize this conclusion makes part of the private sector employee notification provisions of subsection (2)(a)1. surplusage, but the conclusion seems inescapable.
To the extent any of the requested records you propose to release are records prepared by a private employer and those records contain information pertaining to one of that employer’s employees, you should not release the information without obtaining authorization from the individual employee.
Subsection 19.356(2)(a)1. requires an authority to provide notice if it proposes to release 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 a possible employment-related violation by the employee of a statute, ordinance, rule, regulation or policy of the employee’s employer. Because the subsection refers to records that are “created or kept” by the authority, the statute includes within its ambit not only an authority’s records of its employees, but also the covered records of someone who is not an employee of the authority. Because section 19.32(1)(bg) includes within the definition of “employee” “any individual who is employed by an authority . . . or any individual who is employed by an employer other than an authority,” an authority must provide whatever notice is required whenever it proposes to release records covered under this subsection of employees, public or private. As noted above, to the extent the records involve records prepared by a private sector employer and contain information relating to an employee of that private employer, the private employee may veto release of the records.