19.36 Note
NOTE: 2003 Wis. Act 47, which affects this section, contains extensive explanatory notes.
19.36 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 Board,
186 Wis. 2d 443,
521 N.W.2d 165 (Ct. App. 1994).
19.36 Annotation
Sub. (3) does not require providing access to payroll records of subcontractors of a prime contractor of a public construction project. Building & 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
The ultimate purchasers of municipal bonds from the bond's underwriter, whose only obligation was to purchase the bonds, were not contractor's records under sub. (3). Machotka v. Village of West Salem,
2000 WI App 43,
233 Wis. 2d 106,
607 N.W.2d 319,
99-1163.
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 Ass'n 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 were not requests 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 sub. (6) did not essentially require the university to create new records and, as such, did not provide grounds for denying the request under s. 19.35 (1) (L). Osborn v. Board of Regents,
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
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.
19.36 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,
310 Wis. 2d 397,
751 N.W.2d 736,
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,
310 Wis. 2d 397,
751 N.W.2d 736,
05-1473.
19.36 Annotation
By procuring a liability insurance policy and allowing the insurance company to retain counsel for it, the county in effect contracted with the law firm and created an attorney-client relationship. Because the liability insurance policy is the basis for the tripartite relationship between the county, insurance company, and law firm and is the basis for an attorney-client relationship between the law firm and county, the invoices produced or collected during the course of the law firm's representation of the county come under the liability insurance policy, and sub. (3) governs the accessibility of the invoices. Juneau County Star-Times v. Juneau County,
2013 WI 4,
345 Wis. 2d 122,
824 N.W.2d 457,
10-2313.
19.36 Annotation
Responding to a public records request is not a “function" of the police department for purposes of the “agency functions" exception to the federal Driver's Privacy Protection Act, which allows disclosure of personal information from state motor vehicle records for use by a government agency in carrying out its functions. New Richmond News v. City of New Richmond,
2016 WI App 43,
370 Wis. 2d 75,
881 N.W.2d 339,
14-1938.
19.36 Annotation
Under subs. (1) and (2), any record specifically exempted from disclosure pursuant to federal law also is exempt from disclosure under Wisconsin law. Federal regulations preclude release of any information pertaining to individuals detained in a state or local facility, and federal immigration detainer (I-247) forms contain only such information. Read together, subs. (1) and (2) and 8 CFR 236.6 exempt I-247 forms from release under Wisconsin public records law, and the forms are not subject to common-law exemptions or the public interest balancing test. Voces de la Frontera, Inc. v. Clarke,
2017 WI 16,
373 Wis. 2d 348,
891 N.W.2d 803,
15-1152.
19.36 Annotation
Discussing a computerized compilation of bibliographic records 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.
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
Former sub. (7), 2011 stats., is an exception to the public records law and should be narrowly construed. In former sub. (7), 2011 stats., “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 in Wisconsin. Fitzgerald. 68 MLR 705 (1985).
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 willful 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). But see Friends of Frame Park, U.A. v. City of Waukesha,
2020 WI App 61,
394 Wis. 2d 387,
950 N.W.2d 831,
19-0096.
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 an award of fees and costs under sub. (2). Racine Education Ass'n v. Racine Board of Education,
145 Wis. 2d 518,
427 N.W.2d 414 (Ct. App. 1988). But see Friends of Frame Park, U.A. v. City of Waukesha,
2020 WI App 61,
394 Wis. 2d 387,
950 N.W.2d 831,
19-0096.
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 the 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 AnnotationA pro se litigant is not entitled to attorney fees. State ex rel. Young v. Shaw,
165 Wis. 2d 276,
477 N.W.2d 340 (Ct. App. 1991).
19.37 Annotation
A favorable judgment or order is not a necessary condition precedent for finding 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). But see Friends of Frame Park, U.A. v. City of Waukesha,
2020 WI App 61,
394 Wis. 2d 387,
950 N.W.2d 831,
19-0096.
19.37 Annotation
Actions brought under the open meetings and open records laws are exempt from the notice provisions of former s. 893.80 (1), 1993 stats. Auchinleck v. Town of LaGrange,
200 Wis. 2d 585,
547 N.W.2d 587 (1996),
94-2809.
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),
96-2547.
19.37 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 by an authority 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,
310 Wis. 2d 397,
751 N.W.2d 736,
05-1473.
19.37 Annotation
The legislature did not intend to allow a record requester to control or appeal a mandamus action brought by the attorney general under sub. (1) (b). Sub. (1) outlines two distinct courses of action when a records request is denied, dictates distinct courses of action, and prescribes different remedies for each course. Nothing suggests that a requester is hiring the attorney general as a sort of private counsel to proceed with the case or that the requester would be a named plaintiff in the case with the attorney general appearing as counsel of record when proceeding under sub. (1) (b). State v. Zien,
2008 WI App 153,
314 Wis. 2d 340,
761 N.W.2d 15,
07-1930.
19.37 Annotation
This section unambiguously limits punitive damages claims under sub. (3) to mandamus actions. The mandamus court decides whether there is a violation and, if so, whether it caused actual damages. Then, the mandamus court may consider whether punitive damages should be awarded under sub. (3). Capital Times Co. v. Doyle,
2011 WI App 137,
337 Wis. 2d 544,
807 N.W.2d 666,
10-1687.
19.37 Annotation
Under the broad terms of s. 51.30 (7), the confidentiality requirements created under s. 51.30 generally apply to “treatment records" in criminal not guilty by reason of insanity (NGI) cases. All conditional release plans in NGI cases are, by statutory definition, treatment records. They are “created in the course of providing services to individuals for mental illness," and thus should be deemed confidential. An order of placement in an NGI case is not a “treatment record." La Crosse Tribune v. Circuit Court for La Crosse County,
2012 WI App 42,
340 Wis. 2d 663,
814 N.W.2d 867,
10-3120.
19.37 Annotation
The plaintiff newspaper argued that s. 19.88 (3), of the open meetings law, which requires “the motions and roll call votes of each meeting of a governmental body shall be recorded, preserved and open to public inspection," in turn, required the defendant commission to record and disclose the information the newspaper requested under the open records law. The newspaper could not seek relief under the public records law for the commission's alleged violation of the open meetings law and could not recover reasonable attorney fees, damages, and other actual costs under sub. (2) for an alleged violation of the open meetings law. Journal Times v. City of Racine Board of Police & Fire Commissioners,
2015 WI 56,
362 Wis. 2d 577,
866 N.W.2d 563,
13-1715.
19.37 Annotation
A record custodian should not automatically be subject to potential liability under sub. (2) (a) for actively providing information, which it is not required to do in response to a public records request, to a requester when no record exists. While it might be a better course to inform a requester that no record exists, the language of the public records law does not specifically require such a response. Journal Times v. City of Racine Board of Police & Fire Commissioners,
2015 WI 56,
362 Wis. 2d 577,
866 N.W.2d 563,
13-1715.
19.37 Annotation
When litigation is pending and an authority releases a public record because a public records exception is no longer applicable, causation is not the appropriate inquiry for determining whether the requesting party has substantially prevailed under sub. (2) (a). Rather, the key consideration is whether the authority properly invoked the exception in the authority's initial decision to withhold release. A plaintiff with standing to seek a withheld record in a mandamus action should generally be considered to have “substantially prevailed" when the plaintiff demonstrates a violation of s. 19.35 (4) (a); that is, an unreasonable delay caused by the improper reliance on an exception. Friends of Frame Park, U.A. v. City of Waukesha,
2020 WI App 61,
394 Wis. 2d 387,
950 N.W.2d 831,
19-0096.
19.37 Annotation
A mandamus litigant has prevailed in substantial part, and thus is entitled to fees, when the requester obtains access to improperly withheld public records through a judicial order. That a requester may have succeeded in obtaining access to some but not all of the records is an issue subject to the court's discretion in considering the amount of reasonable fees to be awarded. Under this section, the analysis of the extent of access goes to the discretionary award of reasonable fees, not the threshold determination of eligibility. Meinecke v. Thyes,
2021 WI App 58,
399 Wis. 2d 1,
963 N.W.2d 816,
20-0338.
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 commission 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;
2015 a. 118 s.
266 (10).
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 percent 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(3s)
(3s) “Candidate for local 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 local public official or any individual who is nominated for the purpose of appearing on the ballot for election as a local 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(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(4g)
(4g) “Clearly identified," when used in reference to a communication containing a reference to a person, means one of the following:
19.42(4g)(b)
(b) A photograph or drawing of the person appears.
19.42(4g)(c)
(c) The identity of the person is apparent by unambiguous reference.
19.42(4p)
(4p) “Commission" means the ethics commission.
19.42(4r)
(4r) “Communication" means a message transmitted by means of a printed advertisement, billboard, handbill, sample ballot, radio or television advertisement, telephone call, or any medium that may be utilized for the purpose of disseminating or broadcasting a message, but not including a poll conducted solely for the purpose of identifying or collecting data concerning the attitudes or preferences of electors.
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(7w)(e)
(e) The position of member of the Milwaukee County mental health board as created under s.
51.41 (1d).
19.42(7w)(f)
(f) An employee of a school district who holds a school administrator license or permit issued by the department of public instruction under rules promulgated by the department under s.
118.19 and whose employment requires that the individual hold that license or permit.
19.42(7w)(g)
(g) An employee of a school district who acts as the head of facilities and maintenance and whose employment duties include making purchasing decisions or recommendations for the school district.
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.
