19.35 Annotation
The scope of the duty of the governor to allow members of the public to examine and copy public records in his custody is discussed. 63 Atty. Gen. 400.
19.35 Annotation
The public's right to inspect land acquisition files of the department of natural resources is discussed. 63 Atty. Gen. 573.
19.35 Annotation
Financial statements filed in connection with applications for motor vehicle dealers' and motor vehicle salvage dealers' licenses are public records, subject to limitations. 66 Atty. Gen. 302.
19.35 Annotation
Sheriff's radio logs, intradepartmental documents kept by the sheriff, and blood test records of deceased automobile drivers in the hands of the sheriff are public records, subject to limitations. 67 Atty. Gen. 12.
19.35 Annotation
Plans and specifications filed under s. 101.12 are public records and are available for public inspection. 67 Atty. Gen. 214.
19.35 Annotation
Under s. 19.21 (1), district attorneys must indefinitely preserve papers of a documentary nature evidencing activities of prosecutor's office. 68 Atty. Gen. 17.
19.35 Annotation
The right to examine and copy computer-stored information is discussed. 68 Atty. Gen. 231.
19.35 Annotation
After the transcript of court proceedings is filed with the clerk of court, any person may examine or copy the transcript. 68 Atty. Gen. 313.
19.35 Note
NOTE: The following annotations relate to s. 19.35.
19.35 Annotation
Although a meeting was properly closed, in order to refuse inspection of records of the meeting, the custodian was required by sub. (1) (a) to state specific and sufficient public policy reasons why the public's interest in nondisclosure outweighed the right of inspection. Oshkosh Northwestern Co. v. Oshkosh Library Board,
125 Wis. 2d 480,
373 N.W.2d 459 (Ct. App. 1985).
19.35 Annotation
Courts must apply the open records balancing test to questions involving disclosure of court records. The public interests favoring secrecy must outweigh those favoring disclosure. C. L. v. Edson,
140 Wis. 2d 168,
409 N.W.2d 417 (Ct. App. 1987).
19.35 Annotation
Public records germane to pending litigation were available under this section even though the discovery cutoff deadline had passed. State ex rel. Lank v. Rzentkowski,
141 Wis. 2d 846,
416 N.W.2d 635 (Ct. App. 1987).
19.35 Annotation
To upheld a custodian's denial of access, an appellate court will inquire whether the trial court made a factual determination supported by the record of whether documents implicate a secrecy interest, and, if so, whether the secrecy interest outweighs the interests favoring release. Milwaukee Journal v. Call,
153 Wis. 2d 313,
450 N.W.2d 515 (Ct. App. 1989).
19.35 Annotation
That releasing records would reveal a confidential informant's identity was a legally specific reason for denial of a records request. The public interest in not revealing the informant's identity outweighed the public interest in disclosure of the records. Mayfair Chrysler-Plymouth v. Baldarotta,
162 Wis. 2d 142,
469 N.W.2d 638 (1991).
19.35 Annotation
Items subject to examination under s. 346.70 (4) (f) may not be withheld by the prosecution under a common law rule that investigative material may be withheld from a criminal defendant. State ex rel. Young v. Shaw,
165 Wis. 2d 276,
477 N.W.2d 340 (Ct. App. 1991).
19.35 Annotation
Prosecutors' files are exempt from public access under the common law. State ex rel. Richards v. Foust,
165 Wis. 2d 429,
477 N.W.2d 608 (1991).
19.35 Annotation
Records relating to pending claims against the state under s. 893.82 need not be disclosed under s. 19.35. Records of non-pending claims must be disclosed unless an
in camera inspection reveals that the attorney-client privilege would be violated. George v. Record Custodian,
169 Wis. 2d 573,
485 N.W.2d 460 (Ct. App. 1992).
19.35 Annotation
The public records law confers no exemption as of right on indigents from payment of fees under sub. (3). George v. Record Custodian,
169 Wis. 2d 573,
485 N.W.2d 460 (Ct. App. 1992).
19.35 Annotation
The denial of a prisoner's information request regarding illegal behavior by guards on the grounds that it could compromise the guards' effectiveness and subject them to harassment was insufficient. State ex. rel. Ledford v. Turcotte,
195 Wis. 2d 244,
536 N.W.2d 130 (Ct. App. 1995),
94-2710.
19.35 Annotation
The amount of prepayment required for copies may be based on a reasonable estimate. State ex rel. Hill v. Zimmerman,
196 Wis. 2d 419,
538 N.W.2d 608 (Ct. App. 1995),
94-1861.
19.35 Annotation
The
Foust decision does not automatically exempt all records stored in a closed prosecutorial file. The exemption is limited to material actually pertaining to the prosecution. Nichols v. Bennett,
199 Wis. 2d 268,
544 N.W.2d 428 (1996),
93-2480.
19.35 Annotation
Department of Regulation and Licensing test scores were subject to disclosure under the open records law. Munroe v. Braatz,
201 Wis. 2d 442,
549 N.W.2d 452 (Ct. App. 1996),
95-2557.
19.35 Annotation
Subs. (1) (i) and (3) (f) did not permit a demand for prepayment of $1.29 in response to a mail request for a record. Borzych v. Paluszcyk,
201 Wis. 2d 523,
549 N.W.2d 253 (Ct. App. 1996),
95-1711.
19.35 Annotation
An agency cannot promulgate an administrative rule that creates an exception to the open records law. Chavala v. Bubolz,
204 Wis. 2d 82,
552 N.W.2d 892 (Ct. App. 1996),
95-3120.
19.35 Annotation
While certain statutes grant explicit exceptions to the open records law, many statutes set out broad categories of records not open to an open records request. A custodian faced with such a broad statute must state with specificity a public policy reason for refusing to release the requested record. Chavala v. Bubolz,
204 Wis. 2d 82,
552 N.W.2d 892 (Ct. App. 1996),
95-3120.
19.35 Annotation
The custodian is not authorized to comply with an open records request at some unspecified date in the future. Such a response constitutes a denial of the request. WTMJ, Inc. v. Sullivan,
204 Wis. 2d 452,
555 N.W.2d 125 (Ct. App. 1996),
96-0053.
19.35 Annotation
Subject to the redaction of officers' home addresses and supervisors' conclusions and recommendations regarding discipline, police records regarding the use of deadly force were subject to public inspection. State ex rel. Journal/Sentinel, Inc. v. Arreola,
207 Wis. 2d 496,
558 N.W.2d 670 (Ct. App. 1996),
95-2956.
19.35 Annotation
A public school student's interim grades are pupil records specifically exempted from disclosure under s. 118.125. If records are specifically exempted from disclosure, failure to specifically state reasons for denying an open records request for those records does not compel disclosure of those records. State ex rel. Blum v. Board of Education,
209 Wis. 2d 377,
565 N.W.2d 140 (Ct. App. 1997),
96-0758.
19.35 Annotation
Requesting a copy of 180 hours of audiotape of “911" calls, together with a transcription of the tape and log of each transmission received, was a request without “reasonable limitation" and was not a “sufficient request" under sub. (1) (h). Schopper v. Gehring,
210 Wis. 2d 208,
565 N.W.2d 187 (Ct. App. 1997),
96-2782.
19.35 Annotation
If the requested information is covered by an exempting statute that does not require a balancing of public interests, there is no need for a custodian to conduct such a balancing. Written denial claiming a statutory exception by citing the specific statute or regulation is sufficient. State ex rel. Savinski v. Kimble,
221 Wis. 2d 833,
586 N.W.2d 36 (Ct. App. 1998),
97-3356.
19.35 Annotation
Protecting persons who supply information or opinions about an inmate to the parole commission is a public interest that may outweigh the public interest in access to documents that could identify those persons. State ex rel. Bergmann v. Faust,
226 Wis. 2d 273,
595 N.W.2d 75 (Ct. App. 1999),
98-2537.
19.35 Annotation
Sub. (1) (b) gives the record custodian, and not the requester, the choice of how a record will be copied. The requester cannot elect to use his or her own copying equipment without the custodian's permission. Grebner v. Schiebel,
2001 WI App 17,
240 Wis. 2d 551,
624 N.W.2d 892,
00-1549.
19.35 Annotation
Requests for university admissions records focusing on test scores, class rank, grade point average, race, gender, ethnicity, and socio-economic background was not a request for personally identifiable information, and release was not barred by federal law or public policy. That the requests would require the university to redact information from thousands of documents under s. 19.36 (6) did not essentially require the university to create new records and, as such, did not provide grounds for denying the request under s. 19.35 (1) (L). Osborn v. Board of Regents of the University of Wisconsin System,
2002 WI 83,
254 Wis. 2d 266,
647 N.W.2d 158,
00-2861.
19.35 Annotation
The police report of a closed investigation regarding a teacher's conduct that did not lead either to an arrest, prosecution, or any administrative disciplinary action, was subject to release. Linzmeyer v. Forcey,
2002 WI 84,
254 Wis. 2d 306,
646 N.W.2d 811,
01-0197.
19.35 Annotation
The John Doe statute, s. 968.26, which authorizes secrecy in John Doe proceedings, is a clear statement of legislative policy and constitutes a specific exception to the public records law. On review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. Unnamed Persons Numbers 1, 2, and 3 v. State,
2003 WI 30,
260 Wis. 2d 653,
660 N.W.2d 260,
01-3220.
19.35 Annotation
Sub. (1) (am) is not subject to a balancing of interests. Therefore, the exceptions to sub. (1) (am) should not be narrowly construed. A requester who does not qualify for access to records under sub. (1) (am) will always have the right to seek records under sub. (1) (a), in which case the records custodian must determine whether the requested records are subject to a statutory or common law exception, and if not whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure determined by applying a balancing test. Hempel v. City of Baraboo,
2005 WI 120,
284 Wis. 2d 162,
699 N.W.2d 551,
03-0500.
19.35 Annotation
Sub. (1) (a) does not mandate that, when a meeting is closed under s. 19.85, all records created for or presented at the meeting are exempt from disclosure. The court must still apply the balancing test articulated in
Linzmeyer. Zellner v. Cedarburg School District,
2007 WI 53,
300 Wis. 2d 290,
731 N.W.2d 240,
06-1143.
19.35 Annotation
A general request does not trigger the sub. (4) (c) review sequence. Sub. (4) (c) recites the procedure to be employed if an authority receives a request under sub. (1) (a) or (am). An authority is an entity having custody of a record. The definition does not include a reviewing court. Seifert v. School District of Sheboygan Falls,
2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
The open records law cannot be used to circumvent established principles that shield attorney work product, nor can it be used as a discovery tool. The presumption of access under sub. (1) (a) is defeated because the attorney work product qualifies under the “otherwise provided by law" exception. Seifert v. School District of Sheboygan Falls,
2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
Sub. (1) (am) 1. plainly allows a records custodian to deny access to one who is, in effect, a potential adversary in litigation or other proceeding unless or until required to do so under the rules of discovery in actual litigation. The balancing of interests under sub. (1) (a) must include examining all the relevant factors in the context of the particular circumstances and may include the balancing the competing interests consider sub. (1) (am) 1. when evaluating the entire set of facts and making its specific demonstration of the need for withholding the records. Seifert v. School District of Sheboygan Falls,
2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
The sub. (1) (am) analysis is succinct. There is no balancing. There is no requirement that the investigation be current for the exemption for records “collected or maintained in connection with a complaint, investigation or other circumstances that may lead to . . . [a] court proceeding" to apply. Seifert v. School District of Sheboygan Falls,
2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
“Record" in sub. (5) and s. 19.32 (2) does not include identical copies of otherwise available records. A copy that is not different in some meaningful way from an original, regardless of the form of the original, is an identical copy. If a copy differs in some significant way for purposes of responding to an open records request, then it is not truly an identical copy, but instead a different record. Stone v. Board of Regents of the University of Wisconsin,
2007 WI App 223,
305 Wis. 2d 679,
741 N.W.2d 774,
06-2537.
19.35 Annotation
Schopper does not permit a records custodian to deny a request based solely on the custodian's assertion that the request could reasonably be narrowed, nor does
Schopper require that the custodian take affirmative steps to limit the search as a prerequisite to denying a request under sub. (1) (h). The fact that the request may result in the generation of a large volume of records is not, in itself, a sufficient reason to deny a request as not properly limited, but at some point, an overly broad request becomes sufficiently excessive to warrant rejection under sub. (1) (h). Gehl v. Connors,
2007 WI App 238,
306 Wis. 2d 247,
742 N.W.2d 530,
06-2455.
19.35 Annotation
The public records law addresses the duty to disclose records; it does not address the duty to retain records. An agency's alleged failure to keep sought-after records may not be attacked under the public records law. Section 19.21 relates to records retention and is not a part of the public records law. Gehl v. Connors,
2007 WI App 238,
306 Wis. 2d 247,
742 N.W.2d 530,
06-2455.
19.35 Annotation
Foust held that a common law categorical exception exists for records in the custody of a district attorney's office, not for records in the custody of a law enforcement agency. A sheriff's department is legally obligated to provide public access to records in its possession, which cannot be avoided by invoking a common law exception that is exclusive to the records of another custodian. That the same record was in the custody of both the law enforcement agency and the district attorney does not change the outcome. To the extent that a sheriff's department can articulate a policy reason why the public interest in disclosure is outweighed by the interest in withholding the particular record it may properly deny access. Portage Daily Register v. Columbia Co. Sheriff's Department,
2008 WI App 30,
308 Wis. 2d 357,
746 N.W.2d 525,
07-0323.
19.35 Annotation
When requests are complex, municipalities should be afforded reasonable latitude in time for their responses. An authority should not be subjected to the burden and expense of a premature public records lawsuit while it is attempting in good faith to respond, or to determine how to respond, to a request. What constitutes a reasonable time for a response by an authority depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and other related considerations. WIREdata, Inc. v. Village of Sussex,
2008 WI 69,
310 Wis. 2d 397,
751 N.W.2d 736,
05-1473.
19.35 Annotation
Under sub. (3) the legislature provided four tasks for which an authority may impose fees on a requester: “reproduction and transcription," “photographing and photographic processing," “locating," and “mailing or shipping." For each task, an authority is permitted to impose a fee that does not exceed the “actual, necessary and direct" cost of the task. The process of redacting information from a record does not fit into any of the four statutory tasks. Milwaukee Journal Sentinel v. City of Milwaukee,
2012 WI 65,
341 Wis. 2d 607,
815 N.W.2d 367,
11-1112.
19.35 Annotation
Redacted portions of emails, who sent the emails, and where they were sent from were not “purely personal" and therefore subject to disclosure. Public awareness of who is attempting to influence public policy is essential for effective oversight of our government. Whether a communication is sent to a public official from a source that appears associated with a particular unit of government, a private entity, or a nonprofit organization, or from individuals who may be associated with a specific interest or particular area of the state, from where a communication is sent further assists the public in understanding who is attempting to influence public policy and why. The John K. MacIver Institute for Public Policy, Inc. v. Erpenbach,
2014 WI App 49,
354 Wis. 2d 61,
848 N.W.2d 862,
13-1187.
19.35 Annotation
The record requester's identity was relevant in this case. As a general proposition, the identity and purpose of the requester of public records is not a part of the balancing test to be applied in determining whether to release records. However, the determination of whether there is a safety concern that outweighs the presumption of disclosure is a fact-intensive inquiry determined on a case-by-case basis. Ardell v. Milwaukee Board of School Directors,
2014 WI App 66,
354 Wis. 2d 471,
849 N.W.2d 894,
13-1650.
19.35 Annotation
In the present case, although the defendant commission's responses did not state that no record existed, that omission did not impair the court's ability to determine whether a statutory exemption to disclosure applied. Under the facts of the case, the defendant commission lawfully denied the plaintiff newspaper's request because no responsive record existed at the time of the request. The Journal Times v. City of Racine Board of Police and Fire Commissioners,
2015 WI 56,
362 Wis. 2d 577,
866 N.W.2d 563,
13-1715.
19.35 Annotation
Sub. (4) (a) does not requires immediate disclosure of a record. It allows a custodian a reasonable amount of time to respond to a public records request. The Journal Times v. City of Racine Board of Police and Fire Commissioners,
2015 WI 56,
362 Wis. 2d 577,
866 N.W.2d 563,
13-1715.
19.35 Annotation
There is no obligation to create a record in response to an open records request and a requester is not entitled to the release of information in response to a public records request. The Journal Times v. City of Racine Board of Police and Fire Commissioners,
2015 WI 56,
362 Wis. 2d 577,
866 N.W.2d 563,
13-1715.
19.35 Annotation
The question asked by the balancing test is whether there is a risk to the public
if information is released, not whether there is a risk to an
individual if the information is released. Voces de la Frontera, Inc. v. Clarke,
2016 WI App 39, ___ Wis. 2d ___, ___ N.W.2d ___,
15-1152.
19.35 Annotation
A custodian may not require a requester to pay the cost of an unrequested certification. Unless the fee for copies of records is established by law, a custodian may not charge more than the actual and direct cost of reproduction.
72 Atty. Gen. 36.
19.35 Annotation
Copying fees, but not location fees, may be imposed on a requester for the cost of a computer run.
72 Atty. Gen. 68.
19.35 Annotation
Public records relating to employee grievances are not generally exempt from disclosure. Nondisclosure must be justified on a case-by-case basis.
73 Atty. Gen. 20.
19.35 Annotation
The disclosure of an employee's birthdate, sex, ethnic heritage, and handicapped status is discussed.
73 Atty. Gen. 26.
19.35 Annotation
The department of regulation and licensing may refuse to disclose records relating to complaints against health care professionals while the matters are merely “under investigation." Good faith disclosure of the records will not expose the custodian to liability for damages. Prospective continuing requests for records are not contemplated by public records law.
73 Atty. Gen. 37.
19.35 AnnotationProsecutors' case files are exempt from disclosure.
74 Atty. Gen. 4.
19.35 Annotation
The relationship between the public records law and pledges of confidentiality in settlement agreements is discussed.
74 Atty. Gen. 14.
19.35 Annotation
A computerized compilation of bibliographic records is discussed in relation to copyright law; a requester is entitled to a copy of a computer tape or a printout of information on the tape.
75 Atty. Gen. 133 (1986).
19.35 Annotation
Ambulance records relating to medical history, condition, or treatment are confidential while other ambulance call records are subject to disclosure under the public records law.
78 Atty. Gen. 71.
19.35 Annotation
Courts are likely to require disclosure of legislators' mailing and distribution lists absent a factual showing that the public interest in withholding the records outweighs the public interest in their release.
OAG 2-03.
19.35 Annotation
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.
OAG 2-03.
19.35 Annotation
Access Denied: How Woznicki v. Erickson Reversed the Statutory Presumption of Openness in the Wisconsin Open Records Law. Munro. 2002 WLR 1197.
19.356
19.356
Notice to record subject; right of action. 19.356(1)(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.
19.356(2)(a)(a) Except as provided in
pars. (b) to
(d) 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:
19.356(2)(a)1.
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.
19.356(2)(a)2.
2. A record obtained by the authority through a subpoena or search warrant.
19.356(2)(a)3.
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.
19.356(2)(b)
(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.
19.356(2)(c)
(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.
19.356(2)(d)
(d) Paragraph (a) does not apply to the transfer of a record by the administrator of an educational agency to the state superintendent of public instruction under
s. 115.31 (3) (a).
19.356(3)
(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.
19.356(4)
(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).
19.356(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.
19.356(6)
(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.
19.356(7)
(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.
19.356(8)
(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).
19.356(9)(a)(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).
19.356(9)(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.
19.356 History
History: 2003 a. 47;
2011 a. 84.
19.356 Note
NOTE: 2003 Wis. Act 47, which creates this section, contains extensive explanatory notes.
19.356 Annotation
The right of a public employee to obtain de novo judicial review of an authority's decision to allow public access to certain records granted by this section is no broader than the common law right previously recognized. It is not a right to prevent disclosure solely on the basis of a public employee's privacy and reputational interests. The public's interest in not injuring the reputations of public employees must be given due consideration, but it is not controlling. Local 2489 v. Rock County,
2004 WI App 210,
277 Wis. 2d 208,
689 N.W.2d 644,
03-3101.
