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).
19.35 Annotation
Public records law confers no exemption as of right on indigents from payment of fees under (3). George v. Record Custodian, 169 W (2d) 573, 485 NW (2d) 460 (Ct. App. 1992).
19.35 Annotation
Denial of 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 W (2d) 244, 536 NW (2d) 130 (Ct. App. 1995).
19.35 Annotation
The amount of prepayment required for copies may be based on a reasonable estimate. State ex rel. Hill v. Zimmerman, 196 W (2d) 419, 538 NW (2d) 608 (Ct. App. 1995).
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 W (2d) 268, 544 NW (2d) 428 (1996).
19.35 Annotation
There is no blanket exception under the open records law for public employe disciplinary or personnel records. There must be a balancing of interests on a case by case basis. Wisconsin Newspapers, Inc. v. School District of Sheboygan Falls, 199 W (2d) 769, 546 NW (2d) 143 (1996).
19.35 Annotation
Department of Regulation and Licensing test scores were subject to disclosure under the open records law. Munroe v. Braatz, 201 W (2d) 442, 549 NW (2d) 452 (Ct. App. 1996).
19.35 Annotation
Sub. (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 W (2d) 523, 549 NW (2d) 253 (Ct. App. 1996).
19.35 Annotation
Personal records in the hands of an authority are not exempt from the open records law. The custodian of the records must consider all relevant factors, balancing public and private interests, in determining whether the records should be released. The individual whose personal interests are implicated by the potential release of the records may intervene and seek circuit court review of a decision to release the records. Woznicki v. Erickson, 202 W (2d) 178, 549 NW (2d) 699 (1996).
19.35 Annotation
Custodian may not require requester to pay cost of unrequested certification. Unless fee for copies of records is established by law, custodian may not charge more than actual and direct cost of reproduction.
72 Atty. Gen. 36.
19.35 Annotation
Copying fee but not location fee may be imposed on requester for cost of computer run.
72 Atty. Gen. 68.
19.35 Annotation
Public records relating to employe grievances are not generally exempt from disclosure. Nondisclosure must be justified on case-by-case basis.
73 Atty. Gen. 20.
19.35 Annotation
Disclosure of employe's birth date, sex, ethnic heritage and handicapped status discussed.
73 Atty. Gen. 26.
19.35 Annotation
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 same will not expose 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
Relationship between public records law and pledges of confidentiality in settlement agreements discussed.
74 Atty. Gen. 14.
19.36
19.36
Limitations upon access and withholding. 19.36(1)(1)
Application of other laws. Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under
s. 19.35 (1), except that any portion of that record which contains public information is open to public inspection as provided in
sub. (6).
19.36(2)
(2) Law enforcement records. Except as otherwise provided by law, whenever federal law or regulations require or as a condition to receipt of aids by this state require that any record relating to investigative information obtained for law enforcement purposes be withheld from public access, then that information is exempt from disclosure under
s. 19.35 (1).
19.36(3)
(3) Contractors' records. Each authority shall make available for inspection and copying under
s. 19.35 (1) any record produced or collected under a contract entered into by the authority with a person other than an authority to the same extent as if the record were maintained by the authority. This subsection does not apply to the inspection or copying of a record under
s. 19.35 (1) (am).
19.36(4)
(4) Computer programs and data. A computer program, as defined in
s. 16.971 (4) (c), is not subject to examination or copying under
s. 19.35 (1), but the material used as input for a computer program or the material produced as a product of the computer program is subject to the right of examination and copying, except as otherwise provided in
s. 19.35 or this section.
19.36(5)
(5) Trade secrets. An authority may withhold access to any record or portion of a record containing information qualifying as a trade secret as defined in
s. 134.90 (1) (c).
19.36(6)
(6) Separation of information. If a record contains information that is subject to disclosure under
s. 19.35 (1) (a) or
(am) and information that is not subject to such disclosure, the authority having custody of the record shall provide the information that is subject to disclosure and delete the information that is not subject to disclosure from the record before release.
19.36(7)
(7) Identities of applicants for public positions. 19.36(7)(a)(a) In this section, "final candidate" means each applicant for a position who is seriously considered for appointment or whose name is certified for appointment and whose name is submitted for final consideration to an authority for appointment to any state position, except a position in the classified service, or to any local public office, as defined in
s. 19.42 (7w). "Final candidate" includes, whenever there are at least 5 candidates for an office or position, each of the 5 candidates who are considered most qualified for the office or position by an authority, and whenever there are less than 5 candidates for an office or position, each such candidate. Whenever an appointment is to be made from a group of more than 5 candidates, "final candidate" also includes each candidate in the group.
19.36(7)(b)
(b) Every applicant for a position with any authority may indicate in writing to the authority that the applicant does not wish the authority to reveal his or her identity. Except with respect to an applicant whose name is certified for appointment to a position in the state classified service or a final candidate, if an applicant makes such an indication in writing, the authority shall not provide access to any record related to the application that may reveal the identity of the applicant.
19.36(8)
(8) Identities of law enforcement informants. 19.36(8)(a)1.
1. "Informant" means an individual who requests confidentiality from a law enforcement agency in conjunction with providing information to that agency or, pursuant to an express promise of confidentiality by a law enforcement agency or under circumstances in which a promise of confidentiality would reasonably be implied, provides information to a law enforcement agency or, is working with a law enforcement agency to obtain information, related in any case to any of the following:
19.36(8)(a)1.a.
a. Another person who the individual or the law enforcement agency suspects has violated, is violating or will violate a federal law, a law of any state or an ordinance of any local government.
19.36(8)(a)1.b.
b. Past, present or future activities that the individual or law enforcement agency believes may violate a federal law, a law of any state or an ordinance of any local government.
19.36(8)(b)
(b) If an authority that is a law enforcement agency receives a request to inspect or copy a record or portion of a record under
s. 19.35 (1) (a) that contains specific information including but not limited to a name, address, telephone number, voice recording or handwriting sample which, if disclosed, would identify an informant, the authority shall delete the portion of the record in which the information is contained or, if no portion of the record can be inspected or copied without identifying the informant, shall withhold the record unless the legal custodian of the record, designated under
s. 19.33, makes a determination, at the time that the request is made, that the public interest in allowing a person to inspect, copy or receive a copy of such identifying information outweighs the harm done to the public interest by providing such access.
19.36(9)
(9) Records of plans or specifications for state buildings. Records containing plans or specifications for any state-owned or state-leased building, structure or facility or any proposed state-owned or state-leased building, structure or facility are not subject to the right of inspection or copying under
s. 19.35 (1) except as the department of administration otherwise provides by rule.
19.36 Annotation
Computerized compilation of bibliographic records discussed in relation to copyright law; requester is entitled to copy of computer tape or printout of information on tape.
75 Atty. Gen. 133 (1986).
19.36 AnnotationFederal exemption was not incorporated under (1).
77 Atty. Gen. 20.
19.36 Annotation
Sub. (7) is an exception to the public records law and should be narrowly construed. In sub. (7) "applicant" and "candidate" are synonymous. "Final candidates" are the five most qualified unless there are less than five applicants in which case all are final candidates.
81 Atty. Gen. 37.
19.36 Annotation
Public access to law enforcement records. Fitzgerald. 68 MLR 705 (1985).
19.365
19.365
Rights of data subject to challenge; authority corrections. 19.365(1)(1) Except as provided under
sub. (2), an individual or person authorized by the individual may challenge the accuracy of a record containing personally identifiable information pertaining to the individual that is maintained by an authority if the individual is authorized to inspect the record under
s. 19.35 (1) (a) or
(am) and the individual notifies the authority, in writing, of the challenge. After receiving the notice, the authority shall do one of the following:
19.365(1)(a)
(a) Concur with the challenge and correct the information.
19.365(1)(b)
(b) Deny the challenge, notify the individual or person authorized by the individual of the denial and allow the individual or person authorized by the individual to file a concise statement setting forth the reasons for the individual's disagreement with the disputed portion of the record. A state authority that denies a challenge shall also notify the individual or person authorized by the individual of the reasons for the denial.
19.365(2)
(2) This section does not apply to any of the following records:
19.365(2)(b)
(b) Any record pertaining to an individual if a specific state statute or federal law governs challenges to the accuracy of the record.
19.365 History
History: 1991 a. 269 ss.
27d,
27e,
35am,
37am,
39am.
19.37
19.37
Enforcement and penalties. 19.37(1)
(1)
Mandamus. If an authority withholds a record or a part of a record or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may pursue either, or both, of the alternatives under
pars. (a) and
(b).
19.37(1)(a)
(a) The requester may bring an action for mandamus asking a court to order release of the record. The court may permit the parties or their attorneys to have access to the requested record under restrictions or protective orders as the court deems appropriate.
19.37(1)(b)
(b) The requester may, in writing, request the district attorney of the county where the record is found, or request the attorney general, to bring an action for mandamus asking a court to order release of the record to the requester. The district attorney or attorney general may bring such an action.
19.37(1m)
(1m) Time for commencing action. No action for mandamus under
sub. (1) to challenge the denial of a request for access to a record or part of a record may be commenced by any incarcerated person later than 90 days after the date that the request is denied by the authority having custody of the record or part of the record.
19.37(1n)
(1n) Notice of claim. Sections 893.80 and
893.82 do not apply to actions commenced under this section.
19.37(2)(a)(a) Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any action filed under
sub. (1) relating to access to a record or part of a record under
s. 19.35 (1) (a). If the requester is an incarcerated person, the requester is not entitled to any minimum amount of damages, but the court may award damages. Costs and fees shall be paid by the authority affected or the unit of government of which it is a part, or by the unit of government by which the legal custodian under
s. 19.33 is employed and may not become a personal liability of any public official.
19.37(2)(b)
(b) In any action filed under
sub. (1) relating to access to a record or part of a record under
s. 19.35 (1) (am), if the court finds that the authority acted in a wilful or intentional manner, the court shall award the individual actual damages sustained by the individual as a consequence of the failure.
19.37(3)
(3) Punitive damages. If a court finds that an authority or legal custodian under
s. 19.33 has arbitrarily and capriciously denied or delayed response to a request or charged excessive fees, the court may award punitive damages to the requester.
19.37(4)
(4) Penalty. Any authority which or legal custodian under
s. 19.33 who arbitrarily and capriciously denies or delays response to a request or charges excessive fees may be required to forfeit not more than $1,000. Forfeitures under this section shall be enforced by action on behalf of the state by the attorney general or by the district attorney of any county where a violation occurs. In actions brought by the attorney general, the court shall award any forfeiture recovered together with reasonable costs to the state; and in actions brought by the district attorney, the court shall award any forfeiture recovered together with reasonable costs to the county.
19.37 Annotation
Party seeking fees under (2) must show that prosecution of action could reasonably be regarded as necessary to obtain information and that "causal nexus" exists between that action and agency's surrender of information. State ex rel. Vaughan v. Faust, 143 W (2d) 868, 422 NW (2d) 898 (Ct. App. 1988).
19.37 Annotation
If agency exercises due diligence but is unable to respond timely to records request, plaintiff must show that mandamus action was necessary to secure records release to qualify for award of fees and costs under (2). Racine Ed. Ass'n. v. Bd. of Ed., 145 W (2d) 518, 427 NW (2d) 414 (Ct. App. 1988).
19.37 Annotation
Assuming (1) (a) applies before mandamus is issued, trial court retains discretion to refuse counsel's participation in in camera inspection. Milwaukee Journal v. Call, 153 W (2d) 313, 450 NW (2d) 515 (Ct. App. 1989).
19.37 Annotation
Where trial court has incomplete knowledge of contents of public records sought, it must conduct in camera inspection to determine what may be disclosed following custodian's refusal. State ex rel. Morke v. Donnelly, 155 W (2d) 521, 455 NW (2d) 893 (1990).
19.37 Annotation
Pro se litigant not entitled to attorney's fees. State ex rel. Young v. Shaw, 165 W (2d) 276, 477 NW (2d) 340 (Ct. App. 1991).
19.37 Annotation
A favorable judgment or order is not a necessary condition precedent to find that a party prevailed against an agency under sub. (2); a causal nexus must be shown between the prosecution of the mandamus action and the release of the requested information. Eau Claire Press Co. v. Gordon, 176 W (2d) 154, 499 NW (2d) 918 (Ct. App. 1993).
19.37 Annotation
Actions brought under the open meetings and open records laws are exempt from the notice provisions of sub. (1). Auchinleck v. Town of LaGrange, 200 W (2d) 585, 547 NW (2d) 587 (1996).
19.37 Annotation
Actual damages are liability of agency. Punitive damages and forfeitures can be liability of either agency or legal custodian or both. Section 895.46 (1) (a) probably provides indemnification for punitive damages assessed against custodian but not for forfeitures.
72 Atty. Gen. 99.
19.39
19.39
Interpretation by attorney general. Any person may request advice from the attorney general as to the applicability of this subchapter under any circumstances. The attorney general may respond to such a request.
19.39 History
History: 1981 c. 335.
CODE OF ETHICS FOR PUBLIC OFFICIALS AND EMPLOYES
19.41
19.41
Declaration of policy. 19.41(1)
(1) It is declared that high moral and ethical standards among state public officials and state employes are essential to the conduct of free government; that the legislature believes that a code of ethics for the guidance of state public officials and state employes will help them avoid conflicts between their personal interests and their public responsibilities, will improve standards of public service and will promote and strengthen the faith and confidence of the people of this state in their state public officials and state employes.
19.41(2)
(2) It is the intent of the legislature that in its operations the board shall protect to the fullest extent possible the rights of individuals affected.
19.41 History
History: 1973 c. 90; Stats. 1973 s. 11.01;
1973 c. 334 s.
33; Stats. 1973 s. 19.41;
1977 c. 277.
19.42
19.42
Definitions. In this subchapter:
19.42(1)
(1) "Anything of value" means any money or property, favor, service, payment, advance, forbearance, loan, or promise of future employment, but does not include compensation and expenses paid by the state, fees and expenses which are permitted and reported under
s. 19.56, political contributions which are reported under
ch. 11, or hospitality extended for a purpose unrelated to state business by a person other than an organization.
