19.35 Annotation
The John Doe statute, s. 968.26, which authorizes secrecy in John Doe proceedings, is a clear statement of legislative policy and constitutes a specific exception to the public records law. On review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. Unnamed Persons Numbers 1, 2, and 3 v. State, 2003 WI 30,
260 Wis. 2d 653,
660 N.W.2d 260,
01-3220.
19.35 Annotation
Sub. (1) (am) is not subject to a balancing of interests. Therefore, the exceptions to sub. (1) (am) should not be narrowly construed. A requester who does not qualify for access to records under sub. (1) (am) will always have the right to seek records under sub. (1) (a), in which case the records custodian must determine whether the requested records are subject to a statutory or common law exception, and if not whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure determined by applying a balancing test. Hempel v. City of Baraboo, 2005 WI 120,
284 Wis. 2d 162,
699 N.W.2d 551,
03-0500.
19.35 Annotation
Misconduct investigation and disciplinary records are not excepted from public disclosure under sub. (10) (d). Sub. (10) (b) is the only exception to the open records law relating to investigations of possible employee misconduct. Kroeplin v. DNR, 2006 WI App 227,
297 Wis. 2d 254,
725 N.W.2d 286,
05-1093.
19.35 Annotation
Sub. (1) (a) does not mandate that, when a meeting is closed under s. 19.85, all records created for or presented at the meeting are exempt from disclosure. The court must still apply the balancing test articulated in Linzmeyer. Zellner v. Cedarburg School District, 2007 WI 53,
300 Wis. 2d 290,
731 N.W.2d 240,
06-1143.
19.35 Annotation
A general request does not trigger the sub. (4) (c) review sequence. Sub. (4) (c) recites the procedure to be employed if an authority receives a request under (1) (a) or (am). An authority is an entity having custody of a record. The definition does not include a reviewing court. Seifert v. School District of Sheboygan Falls, 2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
The open records law cannot be used to circumvent established principles that shield attorney work product, nor can it be used as a discovery tool. The presumption of access under sub. (1) (a) is defeated because the attorney work product qualifies under the "otherwise provided by law" exception. Seifert v. School District of Sheboygan Falls, 2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
Sub. (1) (am) 1. plainly allows a records custodian to deny access to one who is, in effect, a potential adversary in litigation or other proceeding unless or until required to do so under the rules of discovery in actual litigation. The balancing of interests under sub. (1) (a) must include examining all the relevant factors in the context of the particular circumstances and may include the balancing the competing interests consider sub. (1) (am) 1. when evaluating the entire set of facts and making its specific demonstration of the need for withholding the records. Seifert v. School District of Sheboygan Falls, 2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
The sub. (1) (am) analysis is succinct. There is no balancing. There is no requirement that the investigation be current for the exemption for records "collected or maintained in connection with a complaint, investigation or other circumstances that may lead to . . . [a] court proceeding" to apply. Seifert v. School District of Sheboygan Falls, 2007 WI App 207,
305 Wis. 2d 582,
740 N.W.2d 177,
06-2071.
19.35 Annotation
"Record" in sub. (5) and s. 19.32 (2) 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 of the University of Wisconsin, 2007 WI App 223,
305 Wis. 2d 679,
741 N.W.2d 774,
06-2537.
19.35 Annotation
Schopper does not permit a records custodian to deny a request based solely on the custodian's assertion that the request could reasonably be narrowed, nor does Schopper require that the custodian take affirmative steps to limit the search as a prerequisite to denying a request under sub. (1) (h). The fact that the request may result in the generation of a large volume of records is not, in itself, a sufficient reason to deny a request as not properly limited, but at some point, an overly broad request becomes sufficiently excessive to warrant rejection under sub. (1) (h). Gehl v. Connors, 2007 WI App 238,
306 Wis. 2d 247,
742 N.W.2d 530,
06-2455.
19.35 Annotation
The public records law addresses the duty to disclose records; it does not address the duty to retain records. An agency's alleged failure to keep sought-after records may not be attacked under the public records law. Section 19.21 relates to records retention and is not a part of the public records law. Gehl v. Connors, 2007 WI App 238,
306 Wis. 2d 247,
742 N.W.2d 530,
06-2455.
19.35 Annotation
Foust held that a common law categorical exception exists for records in the custody of a district attorney's office; not for records in the custody of a law enforcement agency. A sheriff's department is legally obligated to provide public access to records in its possession, which cannot be avoided by invoking a common law exception that is exclusive to the records of another custodian. That the same record was in the custody of both the law enforcement agency and the district attorney does not change the outcome. To the extent that a sheriff's department can articulate a policy reason why the public interest in disclosure is outweighed by the interest in withholding the particular record it may properly deny access. Portage Daily Register v. Columbia Co. Sheriff's Department, 2008 WI App 30, ___ Wis. 2d ___,
746 N.W.2d 525,
07-0323.
19.35 Annotation
When requests are complex, municipalities should be afforded reasonable latitude in time for their responses. An authority should not be subjected to the burden and expense of a premature public records lawsuit while it is attempting in good faith to respond, or to determine how to respond, to a request. What constitutes a reasonable time for a response depends on the nature of the request, the staff and other resources available to the authority to process the request, the extent of the request, and other related considerations. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ___ Wis. 2d___, ___ N.W.2d ___,
05-1473.
19.35 Annotation
A custodian may not require a requester to pay the cost of an unrequested certification. Unless the fee for copies of records is established by law, a custodian may not charge more than the actual and direct cost of reproduction.
72 Atty. Gen. 36.
19.35 Annotation
Copying fees, but not location fees, may be imposed on a requester for the cost of a computer run.
72 Atty. Gen. 68.
19.35 Annotation
Public records relating to employee grievances are not generally exempt from disclosure. Nondisclosure must be justified on a case-by-case basis.
73 Atty. Gen. 20.
19.35 Annotation
The disclosure of an employee's birthdate, sex, ethnic heritage, and handicapped status is discussed.
73 Atty. Gen. 26.
19.35 Annotation
The 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 the records will not expose the 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
The relationship between the public records law and pledges of confidentiality in settlement agreements is discussed.
74 Atty. Gen. 14.
19.35 Annotation
A computerized compilation of bibliographic records is discussed in relation to copyright law; a requester is entitled to a copy of a computer tape or a printout of information on the tape.
75 Atty. Gen. 133 (1986).
19.35 Annotation
Ambulance records relating to medical history, condition, or treatment are confidential while other ambulance call records are subject to disclosure under the public records law.
78 Atty. Gen. 71.
19.35 Annotation
Courts are likely to require disclosure of legislators' mailing and distribution lists absent a factual showing that the public interest in withholding the records outweighs the public interest in their release.
OAG 2-03.
19.35 Annotation
If a legislator custodian decides that a mailing or distribution list compiled and used for official purposes must be released under the public records statute, the persons whose names, addresses or telephone numbers are contained on the list are not entitled to notice and the opportunity to challenge the decision prior to release of the record.
OAG 2-03.
19.35 Annotation
Access Denied: How Woznicki v. Erickson Reversed the Statutory Presumption of Openness in the Wisconsin Open Records Law. Munro. 2002 WLR 1197.
19.356
19.356
Notice to record subject; right of action. 19.356(1)(1) Except as authorized in this section or as otherwise provided by statute, no authority is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject, and no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.
19.356(2)(a)(a) Except as provided in
pars. (b) and
(c) and as otherwise authorized or required by statute, if an authority decides under
s. 19.35 to permit access to a record specified in this paragraph, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on any record subject to whom the record pertains, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under
subs. (3) and
(4). This paragraph applies only to the following records:
19.356(2)(a)1.
1. A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer.
19.356(2)(a)2.
2. A record obtained by the authority through a subpoena or search warrant.
19.356(2)(a)3.
3. A record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information.
19.356(2)(b)
(b) Paragraph (a) does not apply to an authority who provides access to a record pertaining to an employee to the employee who is the subject of the record or to his or her representative to the extent required under
s. 103.13 or to a recognized or certified collective bargaining representative to the extent required to fulfill a duty to bargain or pursuant to a collective bargaining agreement under
ch. 111.
19.356(2)(c)
(c) Paragraph (a) does not apply to access to a record produced in relation to a function specified in
s. 106.54 or
230.45 or
subch. II of ch. 111 if the record is provided by an authority having responsibility for that function.
19.356(3)
(3) Within 5 days after receipt of a notice under
sub. (2) (a), a record subject may provide written notification to the authority of his or her intent to seek a court order restraining the authority from providing access to the requested record.
19.356(4)
(4) Within 10 days after receipt of a notice under
sub. (2) (a), a record subject may commence an action seeking a court order to restrain the authority from providing access to the requested record. If a record subject commences such an action, the record subject shall name the authority as a defendant. Notwithstanding
s. 803.09, the requester may intervene in the action as a matter of right. If the requester does not intervene in the action, the authority shall notify the requester of the results of the proceedings under this subsection and
sub. (5).
19.356(5)
(5) An authority shall not provide access to a requested record within 12 days of sending a notice pertaining to that record under
sub. (2) (a). In addition, if the record subject commences an action under
sub. (4), the authority shall not provide access to the requested record during pendency of the action. If the record subject appeals or petitions for review of a decision of the court or the time for appeal or petition for review of a decision adverse to the record subject has not expired, the authority shall not provide access to the requested record until any appeal is decided, until the period for appealing or petitioning for review expires, until a petition for review is denied, or until the authority receives written notice from the record subject that an appeal or petition for review will not be filed, whichever occurs first.
19.356(6)
(6) The court, in an action commenced under
sub. (4), may restrain the authority from providing access to the requested record. The court shall apply substantive common law principles construing the right to inspect, copy, or receive copies of records in making its decision.
19.356(7)
(7) The court, in an action commenced under
sub. (4), shall issue a decision within 10 days after the filing of the summons and complaint and proof of service of the summons and complaint upon the defendant, unless a party demonstrates cause for extension of this period. In any event, the court shall issue a decision within 30 days after those filings are complete.
19.356(8)
(8) If a party appeals a decision of the court under
sub. (7), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by law. An appeal shall be taken within the time period specified in
s. 808.04 (1m).
19.356(9)(a)(a) Except as otherwise authorized or required by statute, if an authority decides under
s. 19.35 to permit access to a record containing information relating to a record subject who is an officer or employee of the authority holding a local public office or a state public office, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on the record subject, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under
par. (b).
19.356(9)(b)
(b) Within 5 days after receipt of a notice under
par. (a), a record subject may augment the record to be released with written comments and documentation selected by the record subject. Except as otherwise authorized or required by statute, the authority under
par. (a) shall release the record as augmented by the record subject.
19.356 History
History: 2003 a. 47.
19.356 Note
NOTE: 2003 Wis. Act 47, which creates this section, contains extensive explanatory notes.
19.356 Annotation
The right of a public employee to obtain de novo judicial review of an authority's decision to allow public access to certain records granted by this section is no broader than the common law right previously recognized. It is not a right to prevent disclosure solely on the basis of a public employee's privacy and reputational interests. The public's interest in not injuring the reputations of public employees must be given due consideration, but it is not controlling. Local 2489 v. Rock County, 2004 WI App 210,
277 Wis. 2d 208,
689 N.W.2d 644,
03-3101.
19.356 Annotation
Sub. (2) (a) 1. must be interpreted as requiring notification when an authority proposes to release records in its possession that are the result of an investigation by an employer into a disciplinary or other employment matter involving an employee, but not when there has been an investigation of possible employment-related violation by the employee and the investigation is conducted by some entity other than the employee's employer.
OAG 1-06.
19.356 Annotation
Sub. (2) (a) 2. is unambiguous. If an authority has obtained a record through a subpoena or a search warrant, it must provide the requisite notice before releasing the records. The duty to notify, however, does not require notice to every record subject who happens to be named in the subpoena or search warrant records. Under sub. (2) (a), DCI must serve written notice of the decision to release the record to any record subject to whom the record pertains.
OAG 1-06.
19.356 Annotation
To the extent any requested records proposed to be released are records prepared by a private employer and those records contain information pertaining to one of the private employer's employees, sub. (2) (a) 3. does not allow release of the information without obtaining authorization from the individual employee.
OAG 1-06.
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. Subject to
sub. (12), 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. "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(10)
(10) Employee personnel records. Unless access is specifically authorized or required by statute, an authority shall not provide access under
s. 19.35 (1) to records containing the following information, except to an employee or the employee's representative to the extent required under
s. 103.13 or to a recognized or certified collective bargaining representative to the extent required to fulfill a duty to bargain under
ch. 111 or pursuant to a collective bargaining agreement under
ch. 111:
19.36(10)(a)
(a) Information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an employee, unless the employee authorizes the authority to provide access to such information.
19.36(10)(b)
(b) Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.
19.36(10)(c)
(c) Information pertaining to an employee's employment examination, except an examination score if access to that score is not otherwise prohibited.
19.36(10)(d)
(d) Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments, or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees.
19.36(11)
(11) Records of an individual holding a local public office or a state public office. Unless access is specifically authorized or required by statute, an authority shall not provide access under
s. 19.35 (1) to records, except to an individual to the extent required under
s. 103.13, containing information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an individual who holds a local public office or a state public office, unless the individual authorizes the authority to provide access to such information. This subsection does not apply to the home address of an individual who holds an elective public office or to the home address of an individual who, as a condition of employment, is required to reside in a specified location.
19.36(12)
(12) Information relating to certain employees. Unless access is specifically authorized or required by statute, an authority shall not provide access to a record prepared or provided by an employer performing work on a project to which
s. 66.0903,
103.49, or
103.50 applies, or on which the employer is otherwise required to pay prevailing wages, if that record contains the name or other personally identifiable information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information. In this subsection, "personally identifiable information" does not include an employee's work classification, hours of work, or wage or benefit payments received for work on such a project.
19.36(13)
(13) Financial identifying information. An authority shall not provide access to personally identifiable data that contains an individual's account or customer number with a financial institution, as defined in
s. 134.97 (1) (b), including credit card numbers, debit card numbers, checking account numbers, or draft account numbers, unless specifically required by law.
19.36 Note
NOTE: 2003 Wis. Act 47, which affects this section, contains extensive explanatory notes.
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),
97-3282.
19.36 Annotation
Production of an analog audio tape was insufficient under sub. (4) when the requester asked for examination and copying of the original digital audio tape. State ex rel. Milwaukee Police Association v. Jones, 2000 WI App 146,
237 Wis. 2d 840,
615 N.W.2d 190,
98-3629.
19.36 Annotation
Requests for university admissions records focusing on test scores, class rank, grade point average, race, gender, ethnicity, and socio-economic background was not a request for personally identifiable information and release was not barred by federal law or public policy. That the requests would require the university to redact information from thousands of documents under s. 19.36 (6) did not essentially require the university to create new records and, as such, did not provide grounds for denying the request under under s. 19.35 (1) (L). Osborn v. Board of Regents of the University of Wisconsin System, 2002 WI 83,
254 Wis. 2d 266,
647 N.W.2d 158,
00-2861.
19.36 Annotation
"Investigation" in sub. (10) (b) includes only that conducted by the public authority itself as a prelude to possible employee disciplinary action. An investigation achieves its "disposition" when the authority acts to impose discipline on an employee as a result of the investigation, regardless of whether the employee elects to pursue grievance arbitration or another review mechanism that may be available. Local 2489 v. Rock County, 2004 WI App 210,
277 Wis. 2d 208,
689 N.W.2d 644,
03-3101. See also, Zellner v. Cedarburg School District, 2007 WI 53,
300 Wis. 2d 290,
731 N.W.2d 240,
06-1143.
19.36 Annotation
Municipalities may not avoid liability under the open records law by contracting with independent contractor assessors for the collection, maintenance, and custody of property assessment records, and then directing any requester of those records to the independent contractor assessors. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ___ Wis. 2d___, ___ N.W.2d ___,
05-1473.
19.36 Annotation
When requests to municipalities, were for electronic/digital copies of assessment records, "PDF" files were "electronic/digital" files despite the fact that the files did not have all the characteristics that the requester wished. It is not required that requesters must be given access to an authority's electronic databases to examine them, extract information from them, or copy them. Allowing requesters such direct access to the electronic databases of an authority would pose substantial risks. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, ___ Wis. 2d___, ___ N.W.2d ___,
05-1473.
19.36 Annotation
A computerized compilation of bibliographic records is discussed in relation to copyright law; a requester is entitled to a copy of a 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).
