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
Sub. (2) does not require providing access to payroll records of subcontractors of a prime contractor of a public construction project. Building and Construction Trades Council v. Waunakee Community School District,
221 Wis. 2d 575,
585 N.W.2d 726 (Ct. App. 1999).
19.36 Annotation
A computerized compilation of bibliographic records is discussed in relation to copyright law; a requester is entitled to a copy of computer tape or a printout of information on the tape.
75 Atty. Gen. 133 (1986).
19.36 Annotation
An exemption to the federal Freedom of Information Act was not incorporated under sub. (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 committed or 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 a committed or 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
A party seeking fees under sub. (2) must show that the prosecution of an action could reasonably be regarded as necessary to obtain the information and that a "causal nexus" exists between that action and the agency's surrender of the information. State ex rel. Vaughan v. Faust,
143 Wis. 2d 868,
422 N.W.2d 898 (Ct. App. 1988).
19.37 Annotation
If an agency exercises due diligence but is unable to respond timely to a records request, the plaintiff must show that a mandamus action was necessary to secure the records release to qualify for award of fees and costs under sub. (2). Racine Ed. Ass'n. v. Bd. of Ed.,
145 Wis. 2d 518,
427 N.W.2d 414 (Ct. App. 1988).
19.37 Annotation
Assuming sub. (1) (a) applies before mandamus is issued, the trial court retains discretion to refuse counsel's participation in an in camera inspection. Milwaukee Journal v. Call,
153 Wis. 2d 313,
450 N.W.2d 515 (Ct. App. 1989).
19.37 Annotation
If the trial court has an incomplete knowledge of contents of the public records sought, it must conduct an in camera inspection to determine what may be disclosed following a custodian's refusal. State ex rel. Morke v. Donnelly,
155 Wis. 2d 521,
455 N.W.2d 893 (1990).
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 Wis. 2d 154,
499 N.W.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 s. 893.80 (1). Auchinleck v. Town of LaGrange,
200 Wis. 2d 585,
547 N.W.2d 587 (1996).
19.37 Annotation
An inmate's right to mandamus under this section is subject to s. 801.02 (7), which requires exhaustion of administrative remedies before an action may be commenced. Moore v. Stahowiak,
212 Wis. 2d 744,
569 N.W.2d 711 (Ct. App. 1997).
19.37 Annotation
Actual damages are the liability of the agency. Punitive damages and forfeitures can be the liability of either the agency or the legal custodian or both. Section 895.46 (1) (a) probably provides indemnification for punitive damages assessed against a 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 EMPLOYEES
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 employees 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 employees 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 employees.
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.
19.42(2)
(2) "Associated", when used with reference to an organization, includes any organization in which an individual or a member of his or her immediate family is a director, officer or trustee, or owns or controls, directly or indirectly, and severally or in the aggregate, at least 10% of the outstanding equity or of which an individual or a member of his or her immediate family is an authorized representative or agent.
19.42(3)
(3) "Board" means the ethics board.
19.42(4)
(4) "Candidate for state public office" means any individual who files nomination papers and a declaration of candidacy under
s. 8.21 or who is nominated at a caucus under
s. 8.05 (1) for the purpose of appearing on the ballot for election as a state public official or any individual who is nominated for the purpose of appearing on the ballot for election as a state public official through the write-in process or by appointment to fill a vacancy in nomination and who files a declaration of candidacy under
s. 8.21.
19.42(5)
(5) "Department" means the legislature, the University of Wisconsin System, any authority or public corporation created and regulated by an act of the legislature and any office, department, independent agency or legislative service agency created under
ch. 13,
14 or
15, any technical college district or any constitutional office other than a judicial office. In the case of a district attorney, "department" means the department of administration unless the context otherwise requires.
19.42(5m)
(5m) "Elective office" means an office regularly filled by vote of the people.
19.42(6)
(6) "Gift" means the payment or receipt of anything of value without valuable consideration.
19.42(7)(b)
(b) An individual's relative by marriage, lineal descent or adoption who receives, directly or indirectly, more than one-half of his or her support from the individual or from whom the individual receives, directly or indirectly, more than one-half of his or her support.
19.42(7m)
(7m) "Income" has the meaning given under section
61 of the internal revenue code.
19.42(7u)
(7u) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of such a political subdivision or special purpose district, a combination or subunit of any of the foregoing or an instrumentality of the state and any of the foregoing.
19.42(7w)
(7w) "Local public office" means any of the following offices, except an office specified in
sub. (13):
19.42(7w)(a)
(a) An elective office of a local governmental unit.
19.42(7w)(b)
(b) A county administrator or administrative coordinator or a city or village manager.
19.42(7w)(c)
(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.
19.42(7w)(cm)
(cm) The position of member of the board of directors of a local exposition district under
subch. II of ch. 229 not serving for a specified term.
19.42(7w)(d)
(d) 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.
19.42(7x)
(7x) "Local public official" means an individual holding a local public office.
19.42(8)
(8) "Ministerial action" means an action that an individual performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to the exercise of the individual's own judgment as to the propriety of the action being taken.
19.42(9)
(9) "Nominee" means any individual who is nominated by the governor for appointment to a state public office and whose nomination requires the advice and consent of the senate.
19.42(10)
(10) "Official required to file" means:
19.42(10)(b)
(b) A member of a technical college district board or district director of a technical college, or any individual occupying the position of assistant, associate or deputy district director of a technical college.
19.42(10)(d)
(d) A state public official whose appointment to state public office requires the advice and consent of the senate, except a member of the board of directors of the Bradley Center Sports and Entertainment Corporation created under
ch. 232.
19.42(10)(e)
(e) An individual appointed by the governor or the state superintendent of public instruction pursuant to
s. 17.20 (2) other than a trustee of any private higher educational institution receiving state appropriations.
19.42(10)(f)
(f) An auditor for the legislative audit bureau.
19.42(10)(g)
(g) The chief clerk and sergeant at arms of each house of the legislature.
