1. No category

Claire Dalle Molle
University Legal Counsel
UW-Madison
April 15, 2015
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"Authority" means any of the following having custody of a
record: a state or local office…department or public body
corporate and politic created by the constitution or by any
law, ordinance, rule or order
"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,
which has been created or is being kept by an authority.
Includes contractor records.
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"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 which are purely personal property;
or materials to which access is limited by
copyright, patent or bequest
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"Requester" means any person who requests
inspection or copies of a record
“Legal custodian” means the person vested by
the authority with full legal power to render
decisions and carry out the authority’s
statutory public records responsibilities
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Public records law
◦ Wis. Stat. §§ 19.31-19.39
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Case Law
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Other substantive statutes and regulations
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Attorney General Opinions
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The policy: “…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…Further, providing
persons with such information is declared to
be…an integral part of the routine duties of
officers and employees whose responsibility it is
to provide such information. [The law] shall be
construed in every instance with a presumption
of complete public access, consistent with the
conduct of governmental business.”
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General Rule: any requester has a right to
inspect any record
◦ In addition to the general rule, a requester has an
enhanced right to inspect any personally
identifiable information pertaining to the individual
in a record
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Form of request?
◦ Request may be oral or in writing
◦ Request must be reasonably specific
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Does the requester have to identify
themselves?
◦ No, a requester generally does not have to identify
themselves or state the purpose of their request
◦ Some substantive statutes restrict access of certain
records to certain people
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Must an authority respond to a records
request?
◦ Yes, an authority must respond to a public records
request by either complying with or denying the
request
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How often must an authority fulfill a records
request?
◦ As often as requests are made- there is no limit
◦ But, there are bases for denial of the request
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Is there a timeline for responding to request?
◦ As soon as is practicable and without delay
◦ “what constitutes a reasonable time for a response to
any specific request depends on the nature of the
request, the staff and other resources available to
process the request, the extent of the request and other
related circumstances.” WIREdata, Inc. v. Village of
Sussex
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Can a request be denied?
◦ Yes, for appropriate reasons
 Request itself is insufficient
 Statutory exceptions
 Balancing test
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Denial of a request
◦ Sufficiency of Request
 A request is sufficient if it is directed at an authority
and reasonably describes the records or information
requested. Seifert, 2007 WI App 207, ¶ 39, 305 Wis. 2d
582, ¶ 39, 740 N.W.2d 177,¶ 39
 No magic words
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Denial of a request
◦ Insufficient Request
 A request must be reasonably specific as to the subject
matter and length of time involved. If it is not, it is not
a sufficient request.
 The purpose of the time and subject matter limitations
is to prevent unreasonably burdening a records
custodian.
 A records custodian should not have to guess at what
records a requester desires. Seifert, 2007 WI App 207,
¶ 42
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Denial of a request
◦ Statutory exemptions
 “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 the public records law].” Wis. Stat. §
19.36(1).
 Privacy laws and others
 Not as many direct statutory exemptions in this area
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Denial of a request
◦ Balancing test
 Must balance the strong public interest in disclosure of
the record against the public interest favoring
nondisclosure
 Determine whether the factual circumstances create an
exception to the presumption of openness
 The private interest of a person not generally relevant
 Must give specific reasons
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Denial of a request
◦ Balancing test
 Examples
 Personally identifiable information of non-affiliated
members of Animal Care and Use Committees. Inclusion of
non-affiliated members (i.e. members of the public) on the
Animal Care and Use Committees is necessary for
compliance with federal law. Under the balancing test
inherent in Wisconsin’s public records law, we have
determined that the public interests in encouraging nonaffiliated members to serve on animal care and use
committees, fulfilling federal requirements, and in
preventing harassment of such members outweigh the
negligible public interest in identifying specific nonaffiliated ACUC members.
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Denial of a Request
◦ Balancing test
 Examples
 Further, even when not explicitly protected by FERPA as an education
record, the University has also redacted the names and other identifying
information of any other students, prospective students or minors
discussed in these records. While FERPA may not, by its specific terms,
apply to these records as a whole, the University has performed the
common law balancing test incorporated in the Wisconsin Public
Records law and concluded that such redaction is appropriate. There is
negligible public interest in identifying any of these individuals merely
because they had some tangential contact with XXX or the assault
victim. The University considered its education mission and
responsibility to protect its students, prospective students, and other
minors. Because the public policy behind FERPA –protecting the
confidentiality of students, their identities, and records directly related
to them— is strong, the greater weight of public interest is served by
redacting identifying information from these documents.
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Mandamus language
◦ Wis. Stat. § 19.35(4)(b) states “if an authority denies
a written request in whole or in part, the requester
shall receive from the authority a written statement
of the reasons for denying the written
request…[and] shall inform the requester that…the
determination is subject to review by mandamus
under s. 19.37 (1) or upon application to the
attorney general or a district attorney.”
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Mandamus language
◦ Full denial: “The University informs you that this
denial of your request is subject to review by
mandamus under Wis. Stat. § 19.37(1)(a) or by
application to the attorney general or district
attorney pursuant to Wis. Stat. § 19.37(1)(b).”
◦ Partial denial: “To the extent that that this could be
considered a partial denial of your request, the
University informs you that it is subject to review by
mandamus under Wis. Stat. § 19.37(1)(a) or by
application to the attorney general or district
attorney pursuant to Wis. Stat. § 19.37(1)(b).”
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Can an authority charge for the requested
records?
◦ Yes, but only the actual, necessary, and direct cost
of producing the records
◦ Costs to copy
◦ Cost of a computer run
◦ Cost of time to search for or locate a record, if it is
over $50
◦ Prepayment may be required if the cost is $5 or
more
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What is the penalty for failing to comply?
Attorneys’ fees, damages of not less than
$100.00, and other actual costs shall be
awarded to a prevailing requester
Sometimes punitive damages or civil
forfeiture
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Other issues
◦ Not required to create a record not already in
existence
◦ Records retention
◦ Not required to provide information
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Wisconsin Department of Justice Public
Records Law Compliance Outline
http://www.doj.state.wi.us/sites/default/files
/dls/public-records-compliance-outline2012.pdf
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Office of Legal Affairs Public Records
http://legal.wisc.edu/public-records.htm
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Lisa Hull, [email protected]
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