Chapter 19

19.32 Annotation A person aggrieved by a request made under the open records law has standing to raise a challenge that the requested materials are not records because they fall within the exception for copyrighted material under sub. (2). Under the facts of this case, the language of sub. (2), when viewed in light of the fair use exception to copyright infringement, applied so that the disputed materials were records within the statutory definition. Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06-1143.

19.32 Annotation “Record” in sub. (2) and s. 19.35 (5) 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, 2007 WI App 223, 305 Wis. 2d 679, 741 N.W.2d 774, 06-2537.

19.32 Annotation A municipality’s independent contractor assessor was not an authority under sub. (1) and was not a proper recipient of an open records request. In this case, only the municipalities themselves were the “authorities” for purposes of the open records law. Accordingly, only the municipalities were proper recipients of the relevant open records requests. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05-1473.

19.32 Annotation A corporation is quasi-governmental if, based on the totality of the circumstances, it resembles a governmental corporation in function, effect, or status, requiring a case-by-case analysis. Here, a primary consideration was that the body was funded exclusively by public tax dollars or interest thereon. Additionally, its office was located in the municipal building, it was listed on the city website, the city provided it with clerical support and office supplies, all its assets revert to the city if it ceased to exist, its books were open for city inspection, the mayor and another city official were directors, and it had no clients other than the city. State v. Beaver Dam Area Development Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295, 06-0662.

19.32 Annotation Employees’ personal emails were not subject to disclosure in this case. Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177, 08-0967.

19.32 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. 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.

19.32 Annotation To be a “quasi-governmental corporation” under sub. (1), an entity must first be a corporation. To hold that the term “quasi-governmental corporation” includes an entity that is not a corporation would effectively rewrite the statute to eliminate the legislature’s use of the word corporation. Wisconsin Professional Police Ass’n v. Wisconsin Counties Ass’n, 2014 WI App 106, 357 Wis. 2d 687, 855 N.W.2d 715, 14-0249.

19.32 Annotation “Notes” in sub. (2) covers a broad range of frequently created, informal writings. Documents found to be notes in this case were mostly handwritten and at times barely legible. They included copies of post-it notes and telephone message slips, and in other ways appeared to reflect hurried, fragmentary, and informal writing. A few documents were in the form of draft letters, but were created for and used by the originators as part of their preparation for, or as part of their processing after, interviews that they conducted. Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53, 364 Wis. 2d 429, 867 N.W.2d 825, 14-1256.

19.32 Annotation The exception from the definition of “record” in sub. (2) of notes “prepared for the originator’s personal use” may apply to notes that are created or used in connection with government work and with a governmental purpose. Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53, 364 Wis. 2d 429, 867 N.W.2d 825, 14-1256.

19.32 Annotation A district attorney is employed by an authority and holds a state public office and therefore is not an “employee” within the meaning of sub. (1bg). Moustakis v. Department of Justice, 2016 WI 42, 368 Wis. 2d 677, 880 N.W.2d 142, 14-1853.

19.32 Annotation Each case involving an alleged quasi-governmental corporation must be decided on the particular facts presented. An entity is a quasi-governmental corporation if, based on the totality of the circumstances, the entity resembles a governmental corporation in function, effect, or status. Accordingly, courts must consider a nonexhaustive list of factors, with no single factor being outcome determinative. The five factors that guided the supreme court’s conclusion in Beaver Dam Area Development Corp., 2008 WI 90, are: 1) whether the entity’s funding comes from predominately public or private sources; 2) whether the entity serves a public function; 3) whether the entity appears to the public to be a government entity; 4) the degree to which the entity is subject to government control; and 5) the amount of access governmental bodies have to the entity’s records. State ex rel. Flynn v. Kemper Center, Inc., 2019 WI App 6, 385 Wis. 2d 811, 924 N.W.2d 218, 17-1897.

19.32 Annotation There is no requirement under sub. (2) that a record be created by a public authority. Privately created materials are not exempt from disclosure. Journal Sentinel, Inc. v. Milwaukee County Sheriff’s Office, 2022 WI App 44, 404 Wis. 2d 328, 979 N.W.2d 609, 21-0615.

19.32 Annotation “Records” must have some relation to the functions of the agency. 72 Atty. Gen. 99.

19.32 Annotation Discussing the treatment of drafts under the public records law. 77 Atty. Gen. 100.

19.32 Annotation Applying Open Records Policy to Wisconsin District Attorneys: Can Charging Guidelines Promote Public Awareness? Mayer. 1996 WLR 295.

19.33 19.33 Legal custodians.

19.33(1) (1) An elective official is the legal custodian of his or her records and the records of his or her office, but the official may designate an employee of his or her staff to act as the legal custodian.

19.33(2) (2) The chairperson of a committee of elective officials, or the designee of the chairperson, is the legal custodian of the records of the committee.

19.33(3) (3) The cochairpersons of a joint committee of elective officials, or the designee of the cochairpersons, are the legal custodians of the records of the joint committee.

19.33(4) (4) Every authority not specified in subs. (1) to (3) shall designate in writing one or more positions occupied by an officer or employee of the authority or the unit of government of which it is a part as a legal custodian to fulfill its duties under this subchapter. In the absence of a designation the authority’s highest ranking officer and the chief administrative officer, if any, are the legal custodians for the authority. The legal custodian shall be vested by the authority with full legal power to render decisions and carry out the duties of the authority under this subchapter. Each authority shall provide the name of the legal custodian and a description of the nature of his or her duties under this subchapter to all employees of the authority entrusted with records subject to the legal custodian’s supervision.

19.33(5) (5) Notwithstanding sub. (4), if an authority specified in sub. (4) or the members of such an authority are appointed by another authority, the appointing authority may designate a legal custodian for records of the authority or members of the authority appointed by the appointing authority, except that if such an authority is attached for administrative purposes to another authority, the authority performing administrative duties shall designate the legal custodian for the authority for whom administrative duties are performed.

19.33(6) (6) The legal custodian of records maintained in a publicly owned or leased building or the authority appointing the legal custodian shall designate one or more deputies to act as legal custodian of such records in his or her absence or as otherwise required to respond to requests as provided in s. 19.35 (4). This subsection does not apply to members of the legislature or to members of any local governmental body.

19.33(7) (7) The designation of a legal custodian does not affect the powers and duties of an authority under this subchapter.

19.33(8) (8) No elective official of a legislative body has a duty to act as or designate a legal custodian under sub. (4) for the records of any committee of the body unless the official is the highest ranking officer or chief administrative officer of the committee or is designated the legal custodian of the committee’s records by rule or by law.

19.33 History History: 1981 c. 335; 2013 a. 171.

19.33 Annotation The right to privacy law, s. 895.50 [now s. 995.50], does not affect the duties of a custodian of public records under former s. 19.21, 1977 stats. 68 Atty. Gen. 68.

19.34 19.34 Procedural information; access times and locations.

19.34(1) (1) Each authority shall adopt, prominently display and make available for inspection and copying at its offices, for the guidance of the public, a notice containing a description of its organization and the established times and places at which, the legal custodian under s. 19.33 from whom, and the methods whereby, the public may obtain information and access to records in its custody, make requests for records, or obtain copies of records, and the costs thereof. The notice shall also separately identify each position of the authority that constitutes a local public office or a state public office. This subsection does not apply to members of the legislature or to members of any local governmental body.

19.34(2) (2) 

19.34(2)(a) (a) Each authority which maintains regular office hours at the location where records in the custody of the authority are kept shall permit access to the records of the authority at all times during those office hours, unless otherwise specifically authorized by law.

19.34(2)(b) (b) Each authority which does not maintain regular office hours at the location where records in the custody of the authority are kept shall:

19.34(2)(b)1. 1. Permit access to its records upon at least 48 hours’ written or oral notice of intent to inspect or copy a record; or

19.34(2)(b)2. 2. Establish a period of at least 2 consecutive hours per week during which access to the records of the authority is permitted. In such case, the authority may require 24 hours’ advance written or oral notice of intent to inspect or copy a record.

19.34(2)(c) (c) An authority imposing a notice requirement under par. (b) shall include a statement of the requirement in its notice under sub. (1), if the authority is required to adopt a notice under that subsection.

19.34(2)(d) (d) If a record of an authority is occasionally taken to a location other than the location where records of the authority are regularly kept, and the record may be inspected at the place at which records of the authority are regularly kept upon one business day’s notice, the authority or legal custodian of the record need not provide access to the record at the occasional location.

19.34 History History: 1981 c. 335; 2003 a. 47; 2013 a. 171.

19.34 Note NOTE: 2003 Wis. Act 47, which affected this section, contains extensive explanatory notes.

19.345 19.345 Time computation. In ss. 19.33 to 19.39, when a time period is provided for performing an act, whether the period is expressed in hours or days, the whole of Saturday, Sunday, and any legal holiday, from midnight to midnight, shall be excluded in computing the period.

19.345 History History: 2003 a. 47.

19.345 Note NOTE: 2003 Wis. Act 47, which created this section, contains extensive explanatory notes.

19.35 19.35 Access to records; fees.

19.35(1) (1) Right to inspection.

19.35(1)(a) (a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.

19.35(1)(am) (am) In addition to any right under par. (a), any requester who is an individual or person authorized by the individual has a right to inspect any personally identifiable information pertaining to the individual in a record containing personally identifiable information that is maintained by an authority and to make or receive a copy of any such information. The right to inspect or copy information in a record under this paragraph does not apply to any of the following:

19.35(1)(am)1. 1. Any record containing personally identifiable information that is collected or maintained in connection with a complaint, investigation or other circumstances that may lead to an enforcement action, administrative proceeding, arbitration proceeding or court proceeding, or any such record that is collected or maintained in connection with such an action or proceeding.

19.35(1)(am)2. 2. Any record containing personally identifiable information that, if disclosed, would do any of the following:

19.35(1)(am)2.a. a. Endanger an individual’s life or safety.

19.35(1)(am)2.b. b. Identify a confidential informant.

19.35(1)(am)2.c. c. Endanger the security, including the security of the population or staff, of any state prison under s. 302.01, jail, as defined in s. 165.85 (2) (bg), juvenile correctional facility, as defined in s. 938.02 (10p), secured residential care center for children and youth, as defined in s. 938.02 (15g), mental health institute, as defined in s. 51.01 (12), center for the developmentally disabled, as defined in s. 51.01 (3), or facility, specified under s. 980.065, for the institutional care of sexually violent persons.

19.35(1)(am)2.d. d. Compromise the rehabilitation of a person in the custody of the department of corrections or detained in a jail or facility identified in subd. 2. c.

19.35(1)(am)2m. 2m. The actual address, as defined in s. 165.68 (1) (b), of a participant in the program established in s. 165.68.

19.35(1)(am)3. 3. Any record that is part of a records series, as defined in s. 19.62 (7), that is not indexed, arranged or automated in a way that the record can be retrieved by the authority maintaining the records series by use of an individual’s name, address or other identifier.

19.35(1)(b) (b) Except as otherwise provided by law, any requester has a right to inspect a record and to make or receive a copy of a record. If a requester appears personally to request a copy of a record that permits copying, the authority having custody of the record may, at its option, permit the requester to copy the record or provide the requester with a copy substantially as readable as the original.

19.35(1)(c) (c) Except as otherwise provided by law, any requester has a right to receive from an authority having custody of a record which is in the form of a comprehensible audio recording a copy of the recording substantially as audible as the original. The authority may instead provide a transcript of the recording to the requester if he or she requests.

19.35(1)(d) (d) Except as otherwise provided by law, any requester has a right to receive from an authority having custody of a record which is in the form of a video recording a copy of the recording substantially as good as the original.

19.35(1)(e) (e) Except as otherwise provided by law, any requester has a right to receive from an authority having custody of a record which is not in a readily comprehensible form a copy of the information contained in the record assembled and reduced to written form on paper.

19.35(1)(em) (em) If an authority receives a request to inspect or copy a record that is in handwritten form or a record that is in the form of a voice recording which the authority is required to withhold or from which the authority is required to delete information under s. 19.36 (8) (b) because the handwriting or the recorded voice would identify an informant, the authority shall provide to the requester, upon his or her request, a transcript of the record or the information contained in the record if the record or information is otherwise subject to public inspection and copying under this subsection.

19.35(1)(f) (f) Notwithstanding par. (b) and except as otherwise provided by law, any requester has a right to inspect any record not specified in pars. (c) to (e) the form of which does not permit copying. If a requester requests permission to photograph the record, the authority having custody of the record may permit the requester to photograph the record. If a requester requests that a photograph of the record be provided, the authority shall provide a good quality photograph of the record.

19.35(1)(g) (g) Paragraphs (a) to (c), (e) and (f) do not apply to a record which has been or will be promptly published with copies offered for sale or distribution.

19.35(1)(h) (h) A request under pars. (a) to (f) is deemed sufficient if it reasonably describes the requested record or the information requested. However, a request for a record without a reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request. A request may be made orally, but a request must be in writing before an action to enforce the request is commenced under s. 19.37.

19.35(1)(i) (i) Except as authorized under this paragraph, no request under pars. (a) and (b) to (f) may be refused because the person making the request is unwilling to be identified or to state the purpose of the request. Except as authorized under this paragraph, no request under pars. (a) to (f) may be refused because the request is received by mail, unless prepayment of a fee is required under sub. (3) (f). A requester may be required to show acceptable identification whenever the requested record is kept at a private residence or whenever security reasons or federal law or regulations so require.

19.35(1)(j) (j) Notwithstanding pars. (a) to (f), a requester shall comply with any regulations or restrictions upon access to or use of information which are specifically prescribed by law.

19.35(1)(k) (k) Notwithstanding pars. (a), (am), (b) and (f), a legal custodian may impose reasonable restrictions on the manner of access to an original record if the record is irreplaceable or easily damaged.

19.35(1)(L) (L) Except as necessary to comply with pars. (c) to (e) or s. 19.36 (6), this subsection does not require an authority to create a new record by extracting information from existing records and compiling the information in a new format.

19.35(2) (2) Facilities. The authority shall provide any person who is authorized to inspect or copy a record under sub. (1) (a), (am), (b) or (f) with facilities comparable to those used by its employees to inspect, copy and abstract the record during established office hours. An authority is not required by this subsection to purchase or lease photocopying, duplicating, photographic or other equipment or to provide a separate room for the inspection, copying or abstracting of records.

19.35(3) (3) Fees.

19.35(3)(a) (a) An authority may impose a fee upon the requester of a copy of a record which may not exceed the actual, necessary and direct cost of reproduction and transcription of the record, unless a fee is otherwise specifically established or authorized to be established by law.

19.35(3)(b) (b) Except as otherwise provided by law or as authorized to be prescribed by law an authority may impose a fee upon the requester of a copy of a record that does not exceed the actual, necessary and direct cost of photographing and photographic processing if the authority provides a photograph of a record, the form of which does not permit copying.

19.35(3)(c) (c) Except as otherwise provided by law or as authorized to be prescribed by law, an authority may impose a fee upon a requester for locating a record, not exceeding the actual, necessary and direct cost of location, if the cost is $50 or more.

19.35(3)(d) (d) An authority may impose a fee upon a requester for the actual, necessary and direct cost of mailing or shipping of any copy or photograph of a record which is mailed or shipped to the requester.

19.35(3)(e) (e) An authority may provide copies of a record without charge or at a reduced charge where the authority determines that waiver or reduction of the fee is in the public interest.

19.35(3)(f) (f) An authority may require prepayment by a requester of any fee or fees imposed under this subsection if the total amount exceeds $5. If the requester is a prisoner, as defined in s. 301.01 (2), or is a person confined in a federal correctional institution located in this state, and he or she has failed to pay any fee that was imposed by the authority for a request made previously by that requester, the authority may require prepayment both of the amount owed for the previous request and the amount owed for the current request.

19.35(3)(g) (g) Notwithstanding par. (a), if a record is produced or collected by a person who is not an authority pursuant to a contract entered into by that person with an authority, the authorized fees for obtaining a copy of the record may not exceed the actual, necessary, and direct cost of reproduction or transcription of the record incurred by the person who makes the reproduction or transcription, unless a fee is otherwise established or authorized to be established by law.

19.35(3)(h) (h)

19.35(3)(h)1. 1. In this paragraph, “law enforcement agency” has the meaning given in s. 19.36 (8) (a) 2.

19.35(3)(h)2. 2. Subject to subds. 3. to 7., an authority that is a law enforcement agency may impose a fee upon a requester for the actual, necessary, and direct cost of redacting, whether by pixelization or other means, recorded audio or video content to the extent redaction is necessary to comply with applicable constitutional, statutory, or common law.

19.35(3)(h)3. 3. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content for which all of the following apply:

19.35(3)(h)3.a. a. If the requester is an individual, the requester provides written certification to the authority that the requester will not use the audio or video content for financial gain, not including an award of damages in a civil action. Any individual providing a false certification under this subd. 3. a. shall be subject to a forfeiture of $10,000 for each violation.

19.35(3)(h)3.b. b. During the calendar year in which the authority receives the request, the same requester has not made more than 10 requests to the authority for records containing audio or video content, including the current request but excluding any request subject to subd. 4. or 5.

19.35(3)(h)4. 4. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content if the requester is an individual directly involved in the event to which the requested records relate, that individual’s attorney or other authorized representative, or that individual’s parent or guardian if the individual is under the age of 18.

19.35(3)(h)5. 5. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content if the event to which the requested records relate is a shooting involving an officer of a law enforcement agency.

19.35(3)(h)6. 6. In calculating the fee imposed under subd. 2., the rate for an actual, necessary, and direct charge for staff time spent redacting shall be based on the pay rate of the authority’s lowest paid employee capable of performing the task.

19.35(3)(h)7. 7. An authority may not impose the fee under subd. 2. with respect to a request for records containing audio or video content unless prior to fulfilling the request the authority provides to the requester in writing an estimate of the amount of the fee to be charged.

19.35(4) (4) Time for compliance and procedures.

19.35(4)(a) (a) Each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority’s determination to deny the request in whole or in part and the reasons therefor.

19.35(4)(b) (b) If a request is made orally, the authority may deny the request orally unless a demand for a written statement of the reasons denying the request is made by the requester within 5 business days of the oral denial. If an authority denies a written request in whole or in part, the requester shall receive from the authority a written statement of the reasons for denying the written request. Every written denial of a request by an authority shall inform the requester that if the request for the record was made in writing, then the determination is subject to review by mandamus under s. 19.37 (1) or upon application to the attorney general or a district attorney.

19.35(4)(c) (c) If an authority receives a request under sub. (1) (a) or (am) from an individual or person authorized by the individual who identifies himself or herself and states that the purpose of the request is to inspect or copy a record containing personally identifiable information pertaining to the individual that is maintained by the authority, the authority shall deny or grant the request in accordance with the following procedure:

19.35(4)(c)1. 1. The authority shall first determine if the requester has a right to inspect or copy the record under sub. (1) (a).

19.35(4)(c)2. 2. If the authority determines that the requester has a right to inspect or copy the record under sub. (1) (a), the authority shall grant the request.