March 25, 2003 - Introduced by Joint Legislative Council. Referred to
Committee on Government Operations and Spending Limitations.
AB196,1,5
1An Act to renumber and amend 230.13 (3);
to amend 19.34 (1), 19.36 (3), 19.36
2(7) (a), 59.20 (3) (a), 61.25 (5), 62.09 (11) (f), 230.13 (1) (intro.) and 233.13 (intro.);
3and
to create 19.32 (1bg), (1de), (1dm), (2g) and (4), 19.345, 19.356, 19.36 (10)
4to (12), 230.13 (3) (b) and 808.04 (1m) of the statutes;
relating to: access to
5public records.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
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.
AB196, s. 1
1Section
1. 19.32 (1bg), (1de), (1dm), (2g) and (4) of the statutes are created to
2read:
AB196,2,53
19.32
(1bg) "Employee" means any individual who is employed by an authority,
4other than an individual holding local public office or a state public office, or any
5individual who is employed by an employer other than an authority.
AB196,2,6
6(1de) "Local governmental unit" has the meaning given in s. 19.42 (7u).
AB196,3,27
(
1dm) "Local public office" has the meaning given in s. 19.42 (7w), and also
8includes any appointive office or position of a local governmental unit in which an
9individual serves as the head of a department, agency, or division of the local
1governmental unit, but does not include any office or position filled by a municipal
2employee, as defined in s. 111.70 (1) (i).
AB196,3,4
3(2g) "Record subject" means an individual about whom personally identifiable
4information is contained in a record.
AB196,3,6
5(4) "State public office" has the meaning given in s. 19.42 (13), but does not
6include 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.
AB196, s. 2
1Section
2. 19.34 (1) of the statutes is amended to read:
AB196,4,102
19.34
(1) Each authority shall adopt, prominently display and make available
3for inspection and copying at its offices, for the guidance of the public, a notice
4containing a description of its organization and the established times and places at
5which, the legal custodian under s. 19.33 from whom, and the methods whereby, the
6public may obtain information and access to records in its custody, make requests for
7records, or obtain copies of records, and the costs thereof.
The notice shall also
8separately identify each position of the authority that constitutes a local public office
9or a state public office. This subsection does not apply to members of the legislature
10or 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.]
AB196, s. 3
11Section
3. 19.345 of the statutes is created to read:
AB196,4,15
1219.345 Time computation. In ss. 19.33 to 19.39, when a time period is
13provided for performing an act, whether the period is expressed in hours or days, the
14whole of Saturday, Sunday, and any legal holiday, from midnight to midnight, shall
15be 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.
AB196, s. 4
16Section
4. 19.356 of the statutes is created to read:
AB196,5,5
119.356 Notice to record subject; right of action. (1) Except as authorized
2in this section or as otherwise provided by statute, no authority is required to notify
3a record subject prior to providing to a requester access to a record containing
4information pertaining to that record subject, and no person is entitled to judicial
5review of the decision of an authority to provide a requester with access to a record.
AB196,5,13
6(2) (a) Except as provided in pars. (b) and (c) and as otherwise authorized or
7required by statute, if an authority decides under s. 19.35 to permit access to a record
8specified in this paragraph, the authority shall, before permitting access and within
93 days after making the decision to permit access, serve written notice of that
10decision on any record subject to whom the record pertains, either by certified mail
11or by personally serving the notice on the record subject. The notice shall briefly
12describe the requested record and include a description of the rights of the record
13subject under subs. (3) and (4). This paragraph applies only to the following records:
AB196,5,1814
1. A record containing information relating to an employee that is created or
15kept by the authority and that is the result of an investigation into a disciplinary
16matter involving the employee or possible employment-related violation by the
17employee of a statute, ordinance, rule, regulation, or policy of the employee's
18employer.
AB196,5,1919
2. A record obtained by the authority through a subpoena or search warrant.
AB196,5,2220
3. A record prepared by an employer other than an authority, if that record
21contains information relating to an employee of that employer, unless the employee
22authorizes the authority to provide access to that information.
AB196,6,223
(b) Paragraph (a) does not apply to an authority who provides access to a record
24pertaining to an employee to the employee who is the subject of the record or to his
25or her representative to the extent required under s. 103.13 or to a recognized or
1certified collective bargaining representative to the extent required to fulfill a duty
2to bargain or pursuant to a collective bargaining agreement under ch. 111.
AB196,6,53
(c) Paragraph (a) does not apply to access to a record produced in relation to a
4function specified in s. 106.54 or 230.45 or subch. II of ch. 111 if the record is provided
5by an authority having responsibility for that function.
AB196,6,8
6(3) Within 5 days after receipt of a notice under sub. (2) (a), a record subject may
7provide written notification to the authority of his or her intent to seek a court order
8restraining the authority from providing access to the requested record.
AB196,6,15
9(4) Within 10 days after receipt of a notice under sub. (2) (a), a record subject
10may commence an action seeking a court order to restrain the authority from
11providing access to the requested record. If a record subject commences such an
12action, the record subject shall name the authority as a defendant. Notwithstanding
13s. 803.09, the requester may intervene in the action as a matter of right. If the
14requester does not intervene in the action, the authority shall notify the requester
15of the results of the proceedings under this subsection and sub. (5).
AB196,6,25
16(5) An authority shall not provide access to a requested record within 12 days
17of sending a notice pertaining to that record under sub. (2) (a). In addition, if the
18record subject commences an action under sub. (4), the authority shall not provide
19access to the requested record during pendency of the action. If the record subject
20appeals or petitions for review of a decision of the court or the time for appeal or
21petition for review of a decision adverse to the record subject has not expired, the
22authority shall not provide access to the requested record until any appeal is decided,
23until the period for appealing or petitioning for review expires, until a petition for
24review is denied, or until the authority receives written notice from the record subject
25that an appeal or petition for review will not be filed, whichever occurs first.
AB196,7,4
1(6) The court, in an action commenced under sub. (4), may restrain the
2authority from providing access to the requested record. The court shall apply
3substantive common law principles construing the right to inspect, copy, or receive
4copies of records in making its decision.
AB196,7,9
5(7) The court, in an action commenced under sub. (4), shall issue a decision
6within 10 days after the filing of the summons and complaint and proof of service of
7the summons and complaint upon the defendant, unless a party demonstrates cause
8for extension of this period. In any event, the court shall issue a decision within 30
9days after those filings are complete.
AB196,7,13
10(8) If a party appeals a decision of the court under sub. (7), the court of appeals
11shall grant precedence to the appeal over all other matters not accorded similar
12precedence by law. An appeal shall be taken within the time period specified in s.
13808.04 (1m).
AB196,7,21
14(9) (a) Except as otherwise authorized or required by statute, if an authority
15decides under s. 19.35 to permit access to a record containing information relating
16to a record subject who is an officer or employee of the authority holding a local public
17office or a state public office, the authority shall, before permitting access and within
183 days after making the decision to permit access, serve written notice of that
19decision on the record subject, either by certified mail or by personally serving the
20notice on the record subject. The notice shall briefly describe the requested record
21and include a description of the rights of the record subject under par. (b).
AB196,8,222
(b) Within 5 days after receipt of a notice under par. (a), a record subject may
23augment the record to be released with written comments and documentation
24selected by the record subject. Except as otherwise authorized or required by statute,
1the authority under par. (a) shall release the record as augmented by the record
2subject.
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.
AB196, s. 5
1Section
5. 19.36 (3) of the statutes is amended to read:
AB196,9,72
19.36
(3) Contractors' records.
Each Subject to sub. (12), each authority shall
3make available for inspection and copying under s. 19.35 (1) any record produced or
4collected under a contract entered into by the authority with a person other than an
5authority to the same extent as if the record were maintained by the authority. This
6subsection does not apply to the inspection or copying of a record under s. 19.35 (1)
7(am).
Note: See the note to Section 7.
AB196, s. 6
8Section
6. 19.36 (7) (a) of the statutes is amended to read:
AB196,9,189
19.36
(7) (a) In this section, "final candidate" means each applicant for a
10position who is seriously considered for appointment or whose name is certified for
11appointment and whose name is submitted for final consideration to an authority for
12appointment to any state position, except a position in the classified service, or to any
13local public office
, as defined in s. 19.42 (7w). "Final candidate" includes, whenever
14there are at least 5 candidates for an office or position, each of the 5 candidates who
15are considered most qualified for the office or position by an authority, and whenever
16there are less than 5 candidates for an office or position, each such candidate.
17Whenever an appointment is to be made from a group of more than 5 candidates,
18"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.]
AB196, s. 7
19Section
7. 19.36 (10) to (12) of the statutes are created to read:
AB196,10,7
119.36
(10) Employee personnel records. Unless access is specifically
2authorized or required by statute, an authority shall not provide access under s.
319.35 (1) to records containing the following information, except to an employee or
4the employee's representative to the extent required under s. 103.13 or to a
5recognized or certified collective bargaining representative to the extent required to
6fulfill a duty to bargain under ch. 111 or pursuant to a collective bargaining
7agreement under ch. 111:
AB196,10,118
(a) Information maintained, prepared, or provided by an employer concerning
9the home address, home electronic mail address, home telephone number, or social
10security number of an employee, unless the employee authorizes the authority to
11provide access to such information.
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(b) Information relating to the current investigation of a possible criminal
13offense or possible misconduct connected with employment by an employee prior to
14disposition of the investigation.
AB196,10,1615
(c) Information pertaining to an employee's employment examination, except
16an examination score if access to that score is not otherwise prohibited.
AB196,10,2217
(d) Information relating to one or more specific employees that is used by an
18authority or by the employer of the employees for staff management planning,
19including performance evaluations, judgments, or recommendations concerning
20future salary adjustments or other wage treatments, management bonus plans,
21promotions, job assignments, letters of reference, or other comments or ratings
22relating to employees.
AB196,11,8
23(11) Records of an individual holding a local public office or a state public
24office. Unless access is specifically authorized or required by statute, an authority
25shall not provide access under s. 19.35 (1) to records, except to an individual to the
1extent required under s. 103.13, containing information maintained, prepared, or
2provided by an employer concerning the home address, home electronic mail address,
3home telephone number, or social security number of an individual who holds a local
4public office or a state public office, unless the individual authorizes the authority
5to provide access to such information. This subsection does not apply to the home
6address of an individual who holds an elective public office or to the home address
7of an individual who, as a condition of employment, is required to reside in a specified
8location.
AB196,11,18
9(12) Information relating to certain employees. Unless access is specifically
10authorized or required by statute, an authority shall not provide access to a record
11prepared or provided by an employer performing work on a project to which s.
1266.0903, 103.49, or 103.50 applies, or on which the employer is otherwise required
13to pay prevailing wages, if that record contains the name or other personally
14identifiable information relating to an employee of that employer, unless the
15employee authorizes the authority to provide access to that information. In this
16subsection, "personally identifiable information" does not include an employee's
17work classification, hours of work, or wage or benefit payments received for work on
18such 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.
AB196, s. 8
1Section
8
. 59.20 (3) (a) of the statutes is amended to read:
AB196,12,122
59.20
(3) (a) Every sheriff, clerk of the circuit court, register of deeds, treasurer,
3register of probate, clerk and county surveyor shall keep his or her office at the county
4seat in the offices provided by the county or by special provision of law; or if there is
5none, then at such place as the board directs. The board may also require any elective
6or appointive county official to keep his or her office at the county seat in an office
7to be provided by the county. All such officers shall keep their offices open during the
8usual business hours of any day except Sunday, as the board directs. With proper
9care, the officers shall open to the examination of any person all books and papers
10required to be kept in his or her office and permit any person so examining to take
11notes and copies of such books, records, papers or minutes therefrom except as
12authorized in par. (c) and
s. ss. 19.36 (10) to (12) and 19.59 (3) (d) or under ch. 69.