LRB-1820/2
JTK&RAC:kmg:jf
2003 - 2004 LEGISLATURE
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.
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