19.31 Annotation
Municipal responsibility under the Wisconsin revised public records law. Maloney. WBB Jan. 1983.
19.31 Annotation
The public records law and the Wisconsin department of revenue. Boykoff. WBB Dec. 1983.
19.31 Annotation
The Wis. open records act: an update on issues. Trubek and Foley. WBB Aug. 1986.
19.31 Annotation
Toward a More Open and Accountable Government: A Call For Optimal Disclosure Under the Wisconsin Open Records Law. Roang. 1994 WLR 719.
19.32(1)
(1) "Authority" means any of the following having custody of a record: a state or local office, elected official, agency, board, commission, committee, council, department or public body corporate and politic created by constitution, law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a local exposition district under
subch. II of ch. 229; any public purpose corporation, as defined in
s. 181.79 (1); any court of law; the assembly or senate; a nonprofit corporation which receives more than 50% of its funds from a county or a municipality, as defined in
s. 59.001 (3), and which provides services related to public health or safety to the county or municipality; a nonprofit corporation operating the Olympic ice training center under
s. 42.11 (3); or a formally constituted subunit of any of the foregoing.
19.32(1c)
(1c) "Incarcerated person" means a person who is incarcerated in a penal facility or who is placed on probation and given confinement under
s. 973.09 (4) as a condition of placement, during the period of confinement for which the person has been sentenced.
19.32(1e)
(1e) "Penal facility" means a state prison under
s. 302.01, county jail, county house of correction or other state, county or municipal correctional or detention facility.
19.32(1m)
(1m) "Person authorized by the individual" means the parent, guardian, as defined in
s. 48.02 (8), or legal custodian, as defined in
s. 48.02 (11), of a child, as defined in
s. 48.02 (2), the guardian, as defined in
s. 880.01 (3), of an individual adjudged incompetent, as defined in
s. 880.01 (4), the personal representative or spouse of an individual who is deceased or any person authorized, in writing, by the individual to exercise the rights granted under this section.
19.32(1r)
(1r) "Personally identifiable information" has the meaning specified in
s. 19.62 (5).
19.32(2)
(2) "Record" means any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority. "Record" includes, but is not limited to, handwritten, typed or printed pages, maps, charts, photographs, films, recordings, tapes (including computer tapes), computer printouts and optical disks. "Record" does not include drafts, notes, preliminary computations and like materials prepared for the originator's personal use or prepared by the originator in the name of a person for whom the originator is working; materials which are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent or bequest; and published materials in the possession of an authority other than a public library which are available for sale, or which are available for inspection at a public library.
19.32(3)
(3) "Requester" means any person who requests inspection or copies of a record, except an incarcerated person, unless the person requests inspection or copies of a record that contains specific references to that person or his or her minor children for whom he or she has not been denied physical placement under
ch. 767, and the record is otherwise accessible to the person by law.
19.32 Annotation
See note to s. 59.20, citing C. L. v. Edson, 140 W (2d) 168, 409 NW (2d) 417 (Ct. App. 1987).
19.32 Annotation
Risk management study commissioned by corporation counsel was not "draft" under (2); evidence showed county paid for and used study in various ways. Fox v. Bock, 149 W (2d) 403, 438 NW (2d) 589 (1989).
19.32 Annotation
A settlement agreement containing a pledge of confidentiality kept in the possession of a school district's attorney was a public record subject to public access. Journal/Sentinel v. Shorewood School Bd. 186 W (2d) 443, 521 NW (2d) 165 (Ct. App. 1994).
19.32 Annotation
"Records" must have some relation to functions of agency.
72 Atty. Gen. 99.
19.32 AnnotationTreatment of drafts under the public records law discussed.
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 elected official is the legal custodian of his or her records and the records of his or her office, but the official may designate an employe of his or her staff to act as the legal custodian.
19.33(2)
(2) The chairperson of a committee of elected 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 elected 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 employe 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 employes 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 elected 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.
19.34
19.34
Procedural information. 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. This subsection does not apply to members of the legislature or to members of any local governmental body.
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.
19.35
19.35
Access to records; fees. 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 record containing personally identifiable information pertaining to the individual that is maintained by an authority and to make or receive a copy of any such information. The right to inspect or copy 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.c.
c. Endanger the security of any state correctional institution, as defined in
s. 301.01 (4), jail, as defined in
s. 165.85 (2) (bg), secured correctional facility, as defined in
s. 938.02 (15m), secured child caring institution, 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 the population or staff of any of these institutions, facilities or jails.
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)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 which appears in written form. If a requester appears personally to request a copy of a record, the authority having custody of the record may, at its option, permit the requester to photocopy 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 tape recording a copy of the tape 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 tape recording a copy of the tape 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) Except as otherwise provided by law, any requester has a right to inspect any record not specified in
pars. (b) 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 employes 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)(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.
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.
19.35(4)(c)3.
3. If the authority determines that the requester does not have a right to inspect or copy the record under
sub. (1) (a), the authority shall then determine if the requester has a right to inspect or copy the record under
sub. (1) (am) and grant or deny the request accordingly.
19.35(5)
(5) Record destruction. No authority may destroy any record at any time after the receipt of a request for inspection or copying of the record under
sub. (1) until after the request is granted or until at least 60 days after the date that the request is denied or, if the requester is an incarcerated person, until at least 90 days after the date that the request is denied. If an authority receives written notice that an action relating to a record has been commenced under
s. 19.37, the record may not be destroyed until after the order of the court in relation to such record is issued and the deadline for appealing that order has passed, or, if appealed, until after the order of the court hearing the appeal is issued. If the court orders the production of any record and the order is not appealed, the record may not be destroyed until after the request for inspection or copying is granted.
19.35(6)
(6) Elected official responsibilities. No elected official is responsible for the record of any other elected official unless he or she has possession of the record of that other official.
19.35 Annotation
See note to s. 59.20, citing State ex rel. Bilder v. Delavan Tp. 112 W (2d) 539, 334 NW (2d) 252 (1983).
19.35 Annotation
Although meeting was properly closed, in order to refuse inspection of meeting records custodian was required by (1) (a) to state specific and sufficient public policy reasons why public interest in nondisclosure outweighed public's right of inspection. Oshkosh Northwestern Co. v. Oshkosh Library Bd. 125 W (2d) 480, 373 NW (2d) 459 (Ct. App. 1985).
19.35 Annotation
Public records germane to pending litigation were available under this section even though discovery cutoff deadline had passed. State ex rel. Lank v. Rzentkowski, 141 W (2d) 846, 416 NW (2d) 635 (Ct. App. 1987).
19.35 Annotation
In determining whether trial court properly upheld custodian's denial of access, appellate court will inquire whether trial court made a factual determination supported by record of whether documents implicate secrecy interest, and, if so, whether secrecy interest outweighs release interest. Milwaukee Journal v. Call, 153 W (2d) 313, 450 NW (2d) 515 (Ct. App. 1989).
19.35 Annotation
That releasing records would reveal confidential informant's identity was legally specific reason for denial of records request; public interest in revealing informant's identity outweighed public interest in disclosure of records. Mayfair Chrysler-Plymouth v. Baldarotta, 162 W (2d) 142, 469 NW (2d) 638 (1991).
19.35 Annotation
Recognized public policy interest in denying access to police personnel files overrides presumption that records should be released. Village of Butler v. Cohen, 163 W (2d) 819, 472 NW (2d) 579 (Ct. App. 1991).
19.35 Annotation
Items subject to examination under 346.70 (4) (f) may not be withheld by prosecution under common law rule that investigative material may be withheld from criminal defendant. State ex rel. Young v. Shaw, 165 W (2d) 276, 477 NW (2d) 340 (Ct. App. 1991).
19.35 Annotation
Prosecutor's files are exempt from public access under common law. State ex rel. Richards v. Foust, 165 W (2d) 429, 477 NW (2d) 608 (1991).
19.35 Annotation
Records relating to pending claims against state under 893.82 need not be disclosed under 19.35; records of non-pending claims must be disclosed unless an in camera inspection reveals attorney client privilege would be violated. George v. Record Custodian, 169 W (2d) 573, 485 NW (2d) 460 (Ct. App. 1992).
