19.32 AnnotationThe treatment of drafts under the public records law is 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 employee 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 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 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. 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)(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.
19.34 Note
NOTE: 2003 Wis. Act 47, which affects 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 creates this section, contains extensive explanatory notes.
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, 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), secured correctional facility, as defined in
s. 938.02 (15m), secured child caring institution, as defined in
s. 938.02 (15g), secured group home, as defined in
s. 938.02 (15p), 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)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 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)(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(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 a committed or 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
A mandamus petition to inspect a county hospital's statistical, administrative, and other records not identifiable with individual patients, states a cause of action under this section. State ex rel. Dalton v. Mundy,
80 Wis. 2d 190,
257 N.W.2d 877 (1977).
19.35 Annotation
Police daily arrest lists must be open for public inspection. Newspapers, Inc. v. Breier,
89 Wis. 2d 417,
279 N.W.2d 179 (1979).
19.35 Annotation
This section is a statement of the common law rule that public records are open to public inspection subject to common law limitations. Section 59.14 [now 59.20 (3)] is a legislative declaration granting persons who come under its coverage an absolute right of inspection subject only to reasonable administrative regulations. State ex rel. Bilder v. Town of Delavan,
112 Wis. 2d 539,
334 N.W.2d 252 (1983).
19.35 Annotation
A newspaper had the right to intervene to protect its right to examine sealed court files. State ex rel. Bilder v. Town of Delavan
112 Wis. 2d 539,
334 N.W.2d 252 (1983).
19.35 Annotation
Although a meeting was properly closed, in order to refuse inspection of records of the meeting, the custodian was required by sub. (1) (a) to state specific and sufficient public policy reasons why the public's interest in nondisclosure outweighed the right of inspection. Oshkosh Northwestern Co. v. Oshkosh Library Board,
125 Wis. 2d 480,
373 N.W.2d 459 (Ct. App. 1985).
19.35 Annotation
Courts must apply the open records balancing test to questions involving disclosure of court records. The public interests favoring secrecy must outweigh those favoring disclosure. C. L. v. Edson,
140 Wis. 2d 168,
409 N.W.2d 417 (Ct. App. 1987).
19.35 Annotation
Public records germane to pending litigation were available under this section even though the discovery cutoff deadline had passed. State ex rel. Lank v. Rzentkowski,
141 Wis. 2d 846,
416 N.W.2d 635 (Ct. App. 1987).
19.35 Annotation
To upheld a custodian's denial of access, an appellate court will inquire whether the trial court made a factual determination supported by the record of whether documents implicate a secrecy interest, and, if so, whether the secrecy interest outweighs the interests favoring release. Milwaukee Journal v. Call,
153 Wis. 2d 313,
450 N.W.2d 515 (Ct. App. 1989).
19.35 Annotation
That releasing records would reveal a confidential informant's identity was a legally specific reason for denial of a records request. The public interest in not revealing the informant's identity outweighed the public interest in disclosure of the records. Mayfair Chrysler-Plymouth v. Baldarotta,
162 Wis. 2d 142,
469 N.W.2d 638 (1991).
19.35 Annotation
The recognized public policy interest in denying access to police personnel files overrides the presumption that records should be released. Village of Butler v. Cohen,
163 Wis. 2d 819,
472 N.W.2d 579 (Ct. App. 1991).
19.35 Annotation
Items subject to examination under s. 346.70 (4) (f) may not be withheld by the prosecution under a common law rule that investigative material may be withheld from a criminal defendant. State ex rel. Young v. Shaw,
165 Wis. 2d 276,
477 N.W.2d 340 (Ct. App. 1991).
19.35 Annotation
Prosecutors' files are exempt from public access under the common law. State ex rel. Richards v. Foust,
165 Wis. 2d 429,
477 N.W.2d 608 (1991).
19.35 Annotation
Records relating to pending claims against the state under s. 893.82 need not be disclosed under s. 19.35. Records of non-pending claims must be disclosed unless an in camera inspection reveals that the attorney-client privilege would be violated. George v. Record Custodian,
169 Wis. 2d 573,
485 N.W.2d 460 (Ct. App. 1992).
19.35 Annotation
The public records law confers no exemption as of right on indigents from payment of fees under (3). George v. Record Custodian,
169 Wis. 2d 573,
485 N.W.2d 460 (Ct. App. 1992).
19.35 Annotation
A settlement agreement containing a pledge of confidentiality and kept in the possession of a school district's attorney was a public record subject to public access under sub. (3). Journal/Sentinel v. School District of Shorewood,
186 Wis. 2d 443,
521 N.W.2d 165 (Ct. App. 1994).
19.35 Annotation
The denial of a 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 Wis. 2d 244,
536 N.W.2d 130 (Ct. App. 1995),
94-2710.
19.35 Annotation
The amount of prepayment required for copies may be based on a reasonable estimate. State ex rel. Hill v. Zimmerman,
196 Wis. 2d 419,
538 N.W.2d 608 (Ct. App. 1995),
94-1861.
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 Wis. 2d 268,
544 N.W.2d 428 (1996),
93-2480.
19.35 Annotation
Department of Regulation and Licensing test scores were subject to disclosure under the open records law. Munroe v. Braatz,
201 Wis. 2d 442,
549 N.W.2d 452 (Ct. App. 1996),
95-2557.
19.35 Annotation
Subs. (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 Wis. 2d 523,
549 N.W.2d 253 (Ct. App. 1996),
95-1711.
19.35 Annotation
An agency cannot promulgate an administrative rule that creates an exception to the open records law. Chavala v. Bubolz,
204 Wis. 2d 82,
552 N.W.2d 892 (Ct. App. 1996).
19.35 Annotation
While certain statutes grant explicit exceptions to the open records law, many statutes set out broad categories of records not open to an open records request. A custodian faced with such a broad statute must state with specificity a public policy reason for refusing to release the requested record. Chavala v. Bubolz,
204 Wis. 2d 82,
552 N.W.2d 892 (Ct. App. 1996).
