Chapter 19

19.21(5)(e) (e) The county board of any county may provide, by ordinance, a program for the keeping, preservation, retention and disposition of public records including the establishment of a committee on public records and may institute a records management service for the county and may appropriate funds to accomplish such purposes.

19.21(5)(f) (f) District attorney records are state records and are subject to s. 978.07.

19.21(6) (6) A school district may provide for the destruction of obsolete school records. Prior to any such destruction, at least 60 days’ notice in writing of such destruction shall be given to the historical society, which shall preserve any records it determines to be of historical interest. The historical society may, upon application, waive the notice. The period of time a school district record shall be kept before destruction shall be not less than 7 years, unless a shorter period is fixed by the public records board under s. 16.61 (3) (e) and except as provided under sub. (7). This section does not apply to pupil records under s. 118.125.

19.21(7) (7) Notwithstanding any minimum period of time for retention set under s. 16.61 (3) (e), any taped recording of a meeting, as defined in s. 19.82 (2), by any governmental body, as defined under s. 19.82 (1), of a city, village, town or school district may be destroyed no sooner than 90 days after the minutes have been approved and published if the purpose of the recording was to make minutes of the meeting.

19.21(8) (8) Any metropolitan sewerage commission created under ss. 200.21 to 200.65 may provide for the destruction of obsolete commission records. No record of the metropolitan sewerage district may be destroyed except by action of the commission specifically authorizing the destruction of that record. Prior to any destruction of records under this subsection, the commission shall give at least 60 days’ prior notice of the proposed destruction to the state historical society, which may preserve records it determines to be of historical interest. Upon the application of the commission, the state historical society may waive this notice. Except as provided under sub. (7), the commission may only destroy a record under this subsection after 7 years elapse from the date of the record’s creation, unless a shorter period is fixed by the public records board under s. 16.61 (3) (e).

19.21 History History: 1971 c. 215; 1975 c. 41 s. 52; 1977 c. 202; 1979 c. 35, 221; 1981 c. 191, 282, 335; 1981 c. 350 s. 13; 1981 c. 391; 1983 a. 532; 1985 a. 180 ss. 22, 30m; 1985 a. 225; 1985 a. 332 s. 251 (1); Sup. Ct. Order, 136 Wis. 2d xi (1987); 1987 a. 147 ss. 20, 25; 1989 a. 248; 1991 a. 39, 185, 316; 1993 a. 27, 60, 172; 1995 a. 27, 201; 1999 a. 150 s. 672; 2017 a. 207 s. 5.

19.21 Annotation Sub. (1) provides that a police chief, as an officer of a municipality, is the legal custodian of all records of that officer’s department. Town of La Grange v. Auchinleck, 216 Wis. 2d 84, 573 N.W.2d 232 (Ct. App. 1997), 96-3313.

19.21 Annotation This section relates to records retention and is not a part of the public records law. An agency’s alleged failure to keep sought-after records may not be attacked under the public records law. State ex rel. Gehl v. Connors, 2007 WI App 238, 306 Wis. 2d 247, 742 N.W.2d 530, 06-2455.

19.21 Annotation Under sub. (1), district attorneys must indefinitely preserve papers of a documentary nature evidencing activities of a prosecutor’s office. 68 Atty. Gen. 17.

19.21 Annotation A county with a population under 500,000 [now 750,000] may by ordinance under sub. (6) [now sub. (5)] provide for the destruction of obsolete case records maintained by the county social services agency under s. 48.59 (1). 70 Atty. Gen. 196.

19.21 Annotation A VTAE [technical college] district is a “school district” under sub. (7) [now sub. (6)]. 71 Atty. Gen. 9.

19.22 19.22 Proceedings to compel the delivery of official property.

19.22(1) (1) If any public officer refuses or neglects to deliver to his or her successor any official property or things as required in s. 19.21, or if the property or things shall come to the hands of any other person who refuses or neglects, on demand, to deliver them to the successor in the office, the successor may make complaint to any circuit judge for the county where the person refusing or neglecting resides. If the judge is satisfied by the oath of the complainant and other testimony as may be offered that the property or things are withheld, the judge shall grant an order directing the person so refusing to show cause, within some short and reasonable time, why the person should not be compelled to deliver the property or things.

19.22(2) (2) At the time appointed, or at any other time to which the matter may be adjourned, upon due proof of service of the order issued under sub. (1), if the person complained against makes affidavit before the judge that the person has delivered to the person’s successor all of the official property and things in the person’s custody or possession pertaining to the office, within the person’s knowledge, the person complained against shall be discharged and all further proceedings in the matter before the judge shall cease.

19.22(3) (3) If the person complained against does not make such affidavit the matter shall proceed as follows:

19.22(3)(a) (a) The judge shall inquire further into the matters set forth in the complaint, and if it appears that any such property or things are withheld by the person complained against the judge shall by warrant commit the person complained against to the county jail, there to remain until the delivery of such property and things to the complainant or until the person complained against be otherwise discharged according to law.

19.22(3)(b) (b) If required by the complainant the judge shall also issue a warrant, directed to the sheriff or any constable of the county, commanding the sheriff or constable in the daytime to search such places as shall be designated in such warrant for such official property and things as were in the custody of the officer whose term of office expired or whose office became vacant, or of which the officer was the legal custodian, and seize and bring them before the judge issuing such warrant.

19.22(3)(c) (c) When any such property or things are brought before the judge by virtue of such warrant, the judge shall inquire whether the same pertain to such office, and if it thereupon appears that the property or things pertain thereto the judge shall order the delivery of the property or things to the complainant.

19.22 History History: 1977 c. 449; 1991 a. 316; 1993 a. 213.

19.23 19.23 Transfer of records or materials to historical society.

19.23(1) (1) Any public records, in any state office, that are not required for current use may, in the discretion of the public records board, be transferred into the custody of the historical society, as provided in s. 16.61.

19.23(2) (2) The proper officer of any county, city, village, town, school district or other local governmental unit, may under s. 44.09 (1) offer title and transfer custody to the historical society of any records deemed by the society to be of permanent historical importance.

19.23(3) (3) The proper officer of any court may, on order of the judge of that court, transfer to the historical society title to such court records as have been photographed or microphotographed or which have been on file for at least 75 years, and which are deemed by the society to be of permanent historical value.

19.23(4) (4) Any other articles or materials which are of historic value and are not required for current use may, in the discretion of the department or agency where such articles or materials are located, be transferred into the custody of the historical society as trustee for the state, and shall thereupon become part of the permanent collections of said society.

19.23 History History: 1975 c. 41 s. 52; 1981 c. 350 s. 13; 1985 a. 180 s. 30m; 1987 a. 147 s. 25; 1991 a. 226; 1995 a. 27.

19.24 19.24 Refusal to deliver money, etc., to successor. Any public officer whatever, in this state, who shall, at the expiration of the officer’s term of office, refuse or willfully neglect to deliver, on demand, to the officer’s successor in office, after such successor shall have been duly qualified and be entitled to said office according to law, all moneys, records, books, papers or other property belonging to the office and in the officer’s hands or under the officer’s control by virtue thereof, shall be imprisoned not more than 6 months or fined not more than $100.

19.24 History History: 1991 a. 316.

19.25 19.25 State officers may require searches, etc., without fees. The secretary of state, treasurer and attorney general, respectively, are authorized to require searches in the respective offices of each other and in the offices of the clerk of the supreme court, of the court of appeals, of the circuit courts, of the registers of deeds for any papers, records or documents necessary to the discharge of the duties of their respective offices, and to require copies thereof and extracts therefrom without the payment of any fee or charge whatever.

19.25 History History: 1977 c. 187, 449.

19.31 19.31 Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

19.31 History History: 1981 c. 335, 391.

19.31 Annotation An agency cannot promulgate an administrative rule that creates an exception to the open records law. Chvala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Ct. App. 1996), 95-3120.

19.31 Annotation Although the requester referred to the federal Freedom of Information Act, a letter that clearly described open records and had all the earmarkings of an open records request was in fact an open records request and triggered, at minimum, a duty to respond. ECO, Inc. v. City of Elkhorn, 2002 WI App 302, 259 Wis. 2d 276, 655 N.W.2d 510, 02-0216.

19.31 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. State ex rel. Gehl v. Connors, 2007 WI App 238, 306 Wis. 2d 247, 742 N.W.2d 530, 06-2455.

19.31 Annotation Absent a clear statutory exception, a limitation under the common law, or an overriding public interest in keeping a public record confidential, the public records law shall be construed in every instance with a presumption of complete public access. As the denial of public access generally is contrary to the public interest, access may be denied only in an exceptional case. An exceptional case exists when the facts are such that the public policy interests favoring nondisclosure outweigh the public policy interests favoring disclosure, notwithstanding the strong presumption favoring disclosure. Hagen v. Board of Regents, 2018 WI App 43, 383 Wis. 2d 567, 916 N.W.2d 198, 17-2058.

19.31 Annotation When a school district, a government entity, uses government resources to collect email addresses of school district parents and then uses those email addresses to promote and advance selected matters of interest to school district personnel, the email addresses relate to the affairs of government and the official acts of those officers and employees who represent them. Gierl v. Mequon-Thiensville School District, 2023 WI App 5, 405 Wis. 2d 757, 985 N.W.2d 116, 21-2190.

19.31 Annotation The Wisconsin Public Records Law. De la Mora. 67 MLR 65 (1983).

19.31 Annotation Toward a More Open and Accountable Government: A Call for Optimal Disclosure Under the Wisconsin Open Records Law. Roang. 1994 WLR 719.

19.31 Annotation Wisconsin’s Public-Records Law: Preserving the Presumption of Complete Public Access in the Age of Electronic Records. Holcomb & Isaac. 2008 WLR 515.

19.31 Annotation Municipal responsibility under the Wisconsin revised public records law. Maloney. WBB Jan. 1983.

19.31 Annotation The public records law and the Wisconsin Department of Revenue. Boykoff. WBB Dec. 1983.

19.31 Annotation The Wisconsin Open Records Act: An update on issues. Trubek & Foley. WBB Aug. 1986.

19.31 Annotation Getting the Best of Both Worlds: Open Government and Economic Development. Westerberg. Wis. Law. Feb. 2009.

19.32 19.32 Definitions. As used in ss. 19.32 to 19.39:

19.32(1) (1) “Authority” means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, council, department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a special purpose district; any court of law; the assembly or senate; a nonprofit corporation which receives more than 50 percent of its funds from a county or a municipality, as defined in s. 59.001 (3), and which provides services related to public health or safety to the county or municipality; a university police department under s. 175.42; or a formally constituted subunit of any of the foregoing.

19.32(1b) (1b) “Committed person” means a person who is committed under ch. 51, 971, 975 or 980 and who is placed in an inpatient treatment facility, during the period that the person’s placement in the inpatient treatment facility continues.

19.32(1bd) (1bd) “Elective official” means an individual who holds an office that is regularly filled by vote of the people.

19.32(1bg) (1bg) “Employee” means any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority.

19.32(1c) (1c) “Incarcerated person” means a person who is incarcerated in a penal facility or who is placed on probation and given confinement under s. 973.09 (4) as a condition of placement, during the period of confinement for which the person has been sentenced.

19.32(1d) (1d) “Inpatient treatment facility” means any of the following:

19.32(1d)(a) (a) A mental health institute, as defined in s. 51.01 (12).

19.32(1d)(c) (c) A facility or unit for the institutional care of sexually violent persons specified under s. 980.065.

19.32(1d)(d) (d) The Milwaukee County mental health complex established under s. 51.08.

19.32(1de) (1de) “Local governmental unit” has the meaning given in s. 19.42 (7u).

19.32(1dm) (1dm) “Local public office” has the meaning given in s. 19.42 (7w), and also includes any appointive office or position of a local governmental unit in which an individual serves as the head of a department, agency, or division of the local governmental unit, but does not include any office or position filled by a municipal employee, as defined in s. 111.70 (1) (i).

19.32(1e) (1e) “Penal facility” means a state prison under s. 302.01, county jail, county house of correction or other state, county or municipal correctional or detention facility.

19.32(1m) (1m) “Person authorized by the individual” means the parent, guardian, as defined in s. 48.02 (8), or legal custodian, as defined in s. 48.02 (11), of an individual who is a child, as defined in s. 48.02 (2); the guardian of an individual adjudicated incompetent in this state; the personal representative or spouse of an individual who is deceased; or any person authorized, in writing, by an individual to act on his or her behalf.

19.32(1r) (1r) “Personally identifiable information” has the meaning specified in s. 19.62 (5).

19.32(2) (2) “Record” means any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority. “Record” includes, but is not limited to, handwritten, typed, or printed pages, maps, charts, photographs, films, recordings, tapes, optical discs, and any other medium on which electronically generated or stored data is recorded or preserved. “Record” does not include drafts, notes, preliminary computations, and like materials prepared for the originator’s personal use or prepared by the originator in the name of a person for whom the originator is working; materials that are purely the personal property of the custodian and have no relation to his or her office; materials to which access is limited by copyright, patent, or bequest; and published materials in the possession of an authority other than a public library that are available for sale, or that are available for inspection at a public library.

19.32(2g) (2g) “Record subject” means an individual about whom personally identifiable information is contained in a record.

19.32(3) (3) “Requester” means any person who requests inspection or copies of a record, except a committed or incarcerated person, unless the person requests inspection or copies of a record that contains specific references to that person or his or her minor children for whom he or she has not been denied physical placement under ch. 767, and the record is otherwise accessible to the person by law.

19.32(3m) (3m) “Special purpose district” means a district, other than a state governmental unit or a county, city, village, or town, that is created to perform a particular function and whose geographic jurisdiction is limited to some portion of this state.

19.32(4) (4) “State public office” has the meaning given in s. 19.42 (13), but does not include a position identified in s. 20.923 (6) (f) to (gm).

19.32 History History: 1981 c. 335; 1985 a. 26, 29, 332; 1987 a. 305; 1991 a. 39, 1991 a. 269 ss. 26pd, 33b; 1993 a. 215, 263, 491; 1995 a. 158; 1997 a. 79, 94; 1999 a. 9; 2001 a. 16; 2003 a. 47; 2005 a. 387; 2007 a. 20; 2013 a. 171, 265; 2015 a. 195, 196.

19.32 Note NOTE: 2003 Wis. Act 47, which affected this section, contains extensive explanatory notes.

19.32 Annotation A study commissioned by the corporation counsel and used in various ways was not a “draft” under sub. (2), although it was not in final form. A document prepared other than for the originator’s personal use, although in preliminary form or marked “draft,” is a record. Fox v. Bock, 149 Wis. 2d 403, 438 N.W.2d 589 (1989).

19.32 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. Journal/Sentinel, Inc. v. School Board, 186 Wis. 2d 443, 521 N.W.2d 165 (Ct. App. 1994).

19.32 Annotation Individuals confined as sexually violent persons under ch. 980 are not “incarcerated” under sub. (1c). Klein v. Wisconsin Resource Center, 218 Wis. 2d 487, 582 N.W.2d 44 (Ct. App. 1998), 97-0679.

19.32 Annotation A nonprofit corporation that receives 50 percent of its funds from a municipality or county is an authority under sub. (1) regardless of the source from which the municipality or county obtains those funds. Cavey v. Walrath, 229 Wis. 2d 105, 598 N.W.2d 240 (Ct. App. 1999), 98-0072.

19.32 Annotation A person aggrieved by a request made under the open records law has standing to raise a challenge that the requested materials are not records because they fall within the exception for copyrighted material under sub. (2). Under the facts of this case, the language of sub. (2), when viewed in light of the fair use exception to copyright infringement, applied so that the disputed materials were records within the statutory definition. Zellner v. Cedarburg School District, 2007 WI 53, 300 Wis. 2d 290, 731 N.W.2d 240, 06-1143.

19.32 Annotation “Record” in sub. (2) and s. 19.35 (5) 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, 2007 WI App 223, 305 Wis. 2d 679, 741 N.W.2d 774, 06-2537.

19.32 Annotation A municipality’s independent contractor assessor was not an authority under sub. (1) and was not a proper recipient of an open records request. In this case, only the municipalities themselves were the “authorities” for purposes of the open records law. Accordingly, only the municipalities were proper recipients of the relevant open records requests. WIREdata, Inc. v. Village of Sussex, 2008 WI 69, 310 Wis. 2d 397, 751 N.W.2d 736, 05-1473.

19.32 Annotation A corporation is quasi-governmental if, based on the totality of the circumstances, it resembles a governmental corporation in function, effect, or status, requiring a case-by-case analysis. Here, a primary consideration was that the body was funded exclusively by public tax dollars or interest thereon. Additionally, its office was located in the municipal building, it was listed on the city website, the city provided it with clerical support and office supplies, all its assets revert to the city if it ceased to exist, its books were open for city inspection, the mayor and another city official were directors, and it had no clients other than the city. State v. Beaver Dam Area Development Corp., 2008 WI 90, 312 Wis. 2d 84, 752 N.W.2d 295, 06-0662.

19.32 Annotation Employees’ personal emails were not subject to disclosure in this case. Schill v. Wisconsin Rapids School District, 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177, 08-0967.

19.32 Annotation Redacted portions of emails, who sent the emails, and where they were sent from were not “purely personal” and therefore subject to disclosure. Public awareness of who is attempting to influence public policy is essential for effective oversight of our government. Whether a communication is sent to a public official from a source that appears associated with a particular unit of government, a private entity, or a nonprofit organization, or from individuals who may be associated with a specific interest or particular area of the state, from where a communication is sent further assists the public in understanding who is attempting to influence public policy and why. John K. MacIver Institute for Public Policy, Inc. v. Erpenbach, 2014 WI App 49, 354 Wis. 2d 61, 848 N.W.2d 862, 13-1187.

19.32 Annotation To be a “quasi-governmental corporation” under sub. (1), an entity must first be a corporation. To hold that the term “quasi-governmental corporation” includes an entity that is not a corporation would effectively rewrite the statute to eliminate the legislature’s use of the word corporation. Wisconsin Professional Police Ass’n v. Wisconsin Counties Ass’n, 2014 WI App 106, 357 Wis. 2d 687, 855 N.W.2d 715, 14-0249.

19.32 Annotation “Notes” in sub. (2) covers a broad range of frequently created, informal writings. Documents found to be notes in this case were mostly handwritten and at times barely legible. They included copies of post-it notes and telephone message slips, and in other ways appeared to reflect hurried, fragmentary, and informal writing. A few documents were in the form of draft letters, but were created for and used by the originators as part of their preparation for, or as part of their processing after, interviews that they conducted. Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53, 364 Wis. 2d 429, 867 N.W.2d 825, 14-1256.

19.32 Annotation The exception from the definition of “record” in sub. (2) of notes “prepared for the originator’s personal use” may apply to notes that are created or used in connection with government work and with a governmental purpose. Voice of Wisconsin Rapids, LLC v. Wisconsin Rapids Public School District, 2015 WI App 53, 364 Wis. 2d 429, 867 N.W.2d 825, 14-1256.

19.32 Annotation A district attorney is employed by an authority and holds a state public office and therefore is not an “employee” within the meaning of sub. (1bg). Moustakis v. Department of Justice, 2016 WI 42, 368 Wis. 2d 677, 880 N.W.2d 142, 14-1853.

19.32 Annotation Each case involving an alleged quasi-governmental corporation must be decided on the particular facts presented. An entity is a quasi-governmental corporation if, based on the totality of the circumstances, the entity resembles a governmental corporation in function, effect, or status. Accordingly, courts must consider a nonexhaustive list of factors, with no single factor being outcome determinative. The five factors that guided the supreme court’s conclusion in Beaver Dam Area Development Corp., 2008 WI 90, are: 1) whether the entity’s funding comes from predominately public or private sources; 2) whether the entity serves a public function; 3) whether the entity appears to the public to be a government entity; 4) the degree to which the entity is subject to government control; and 5) the amount of access governmental bodies have to the entity’s records. State ex rel. Flynn v. Kemper Center, Inc., 2019 WI App 6, 385 Wis. 2d 811, 924 N.W.2d 218, 17-1897.

19.32 Annotation There is no requirement under sub. (2) that a record be created by a public authority. Privately created materials are not exempt from disclosure. Journal Sentinel, Inc. v. Milwaukee County Sheriff’s Office, 2022 WI App 44, 404 Wis. 2d 328, 979 N.W.2d 609, 21-0615.

19.32 Annotation “Records” must have some relation to the functions of the agency. 72 Atty. Gen. 99.

19.32 Annotation Discussing the treatment of drafts under the public records law. 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 elective 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 elective 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 elective 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.