Wisconsin Legislature: oag7-14

¶ 6. The general rule is that notice to a record subject is not required. Wisconsin Stat. § 19.356(1) establishes that “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,” except as authorized in Wis. Stat. § 19.356.

¶ 7. Wisconsin Stat. § 19.356 provides two exceptions to the general rule. First, an authority must notify a record subject in three narrow circumstances provided by Wis. Stat. § 19.356(2). Second, Wis. Stat. § 19.356(9) provides that an authority must notify “a record subject who is an officer or employee of the authority holding a local public office or a state public office.” Wis. Stat. § 19.356(9)(a).[4]

¶ 8. Both exceptions use the term “record subject,” a term defined as “an individual about whom personally identifiable information is contained in a record.” Wis. Stat. § 19.32(2g). “Personally identifiable information,” in turn, is defined as “information that can be associated with a particular individual through one or more identifiers or other information or circumstances,” see Wis. Stat. § 19.62(5) (incorporated into the public records law by Wis. Stat. § 19.32(1r)), and includes an individual’s name.

¶ 9. The Wis. Stat. § 19.356(9)(a) exception does not apply, however, to any record merely mentioning the name of a record subject. Instead, it applies only to records “containing information relating to a record subject.” Wis. Stat. § 19.356(9)(a). The mention of a public official’s name, standing alone, does not bring a record within the ambit of the exception. Several provisions in Wis. Stat. § 19.356 compel this result.

¶ 10. First, Wis. Stat. § 19.356(1) provides that the exceptions in both Wis. Stat. § 19.356(2) and (9) apply only when a record “contain[s] information pertaining to that record subject.” A record containing information pertaining to a public official must include more than a mention of his name. A prior attorney general opinion, construing that language in the course of interpreting Wis. Stat. § 19.356(2)(a), concluded that the word “pertain” requires more than a record containing personally identifiable information. Instead, a record would “pertain” to the person named in a subpoena or the person whose residence was the object of a search warrant, and the duty to notify would apply only to the release of such records. OAG-1-06 at 3 (Aug. 3, 2006). The opinion concluded: “[T]he mere fact that the record contains personally identifiable information about an individual, for example, the individual’s name, does not mean that individual is entitled to be notified that the record is proposed to be released.” OAG-1-06 at 3.

¶ 11. Like Wis. Stat. § 19.356(2)(a), Wis. Stat. § 19.356(9)(a) is subject to the limitation in Wis. Stat. § 19.356(1) providing that notice is required only for records “containing information pertaining to that record subject.” “Statutes relating to the same subject matter are to be construed together and harmonized.” Wis. Bell, Inc. v. Pub. Serv. Comm’n, 2004 WI App 223, ¶ 24, 277 Wis. 2d 729, 691 N.W.2d 697. The fact that the language in Wis. Stat. § 19.356(1) is common to Wis. Stat. § 19.356(2)(a) and (9)(a) counsels that they be read consistently. Wisconsin Stat. § 19.356(9)(a) thus also should be read as requiring notice only for records that relate or pertain to a public official in a substantive way.

¶ 12. Within Wis. Stat. § 19.356(9)(a) itself, the subsection is limited to records containing information “relating to” a record subject, language that echoes the “pertaining to” phrase in Wis. Stat. § 19.356(1). The Legislature could have, but did not, require notice regarding any record “containing personally identifiable information” about the public official. In addition, the provision applies only when the authority is the public official’s employer or office, a limitation also suggesting that the record must do more than mention the official’s name. While any authority might have records mentioning the name of a public official, his employer or office is far more likely to have records that pertain directly to him.[5]

¶ 13. This reading is further confirmed by Wis. Stat. § 19.356(9)(b), which permits the public official to “augment the record to be released with written comments and documentation selected by the record subject.” Wisconsin Stat. § 19.356(9)(b) makes sense only if the record to be released relates in a substantive way to the public official. If the record simply mentions his name, there is no information to augment.

¶ 14. If Wis. Stat. § 19.356(9) exception were read to require notice regarding any record that mentions a public official’s name, the exception would almost swallow the rule. Although impossible to quantify, a large portion of records in the possession of authorities contain the name of a public official. For example, many state agencies include the name of their agency head on their letterhead and other documents. Requiring notice regarding any record bearing the public official’s name would require the authority to notify him and afford five days to augment such records. This would be an absurd result.

¶ 15. “[L]egislative history is sometimes consulted to confirm or verify a plain-meaning interpretation.” Kalal, 271 Wis. 2d 633, ¶ 51 (citation omitted). Wisconsin Stat. § 19.356(9) was created by 2003 Wis. Act 47. The Prefatory Note to Act 47 indicates that the law partially codifies Woznicki v. Erickson, 202 Wis. 2d 178, 193-94, 549 N.W.2d 699 (1996), and Milwaukee Teachers’ Educational Ass’n v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999), cases concerned with the effect of the release of records on the interests of persons identified in the records and their privacy and reputation. 2003 Wis. Act 47, Joint Legislative Council Prefatory Note. A record that mentions a public official in passing, or simply lists his or her name, normally does not implicate such concerns.

¶ 16. Regarding your second question, you ask whether Wis. Stat. § 19.356(9) is limited to the three circumstances spelled out in Wis. Stat. § 19.356(2)(a). Wisconsin Stat. § 19.356(2)(a) provides that any record subject, whether a public official or not, is entitled to notice when:

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.

2. A record obtained by the authority through a subpoena or search warrant.

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.

¶ 17. Wisconsin Stat. § 19.356(9) is plain on its face. The provision makes no reference back to the specific types of records described in Wis. Stat. § 19.356(2)(a). Because the statute does not include the limits under Wis. Stat. § 19.356(2)(a), those limits should not be imposed after the fact. See generally State v. Deborah J.Z., 228 Wis. 2d 468, 475-76, 596 N.W.2d 490 (Ct. App. 1999) (the omission of a provision from a similar statute concerning a related subject is significant in showing that a different intention existed). This interpretation is supported by the previous attorney general opinion. See OAG-1-06 at 8 (“Subsection (9)(a), however, does not restrict the duty to notify to the class of records listed in subsection (2)(a)[.]”).

¶ 18. I conclude that a record mentioning a public official does not necessarily relate to a record subject within the meaning of Wis. Stat. § 19.356(9). Wisconsin Stat. § 19.356(9) is not limited, however, to the specific categories of records enumerated in Wis. Stat. § 19.356(2)(a).

Sincerely,

J.B. VAN HOLLEN

Attorney General

JBVH:DPL:CG:ajw

All citations in this letter are to Wisconsin Statutes 2011-12.

As a general matter, this issue of notice and delay applies only after an authority applies the standard public records analysis and determines that it has responsive records that must be released. See Wisconsin Public Records Law Wis. Stat. §§ 19.31-19.39 Compliance Outline, DOJ, 42 (Sept. 2012), http://www.doj.state.wi.us/sites/default/files/dls/public-records-compliance-outline-2012.pdf.

The five days are business days. Wis. Stat. § 19.356(9).

“Local public office” and “state public office” are defined for public records law purposes in Wis. Stat. § 19.32(1dm) and (4), which refer, respectively, to Wis. Stat. § 19.42(7w) and (13). This letter refers to these individuals as “public officials” for shorthand.

The Joint Legislative Council’s Note to 2003 Wis. Act 47, § 4, the act creating Wis. Stat. § 19.356(9), describes the records covered by that section as ones “containing information relating to the employment of the record subject.” 2003 Wis. Act 47, § 4, Joint Legislative Council Note.