60 Op. Att'y Gen. 284 (1971)

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Public Records
Natural Resources Department
Section 19.21, Stats.

Inspection of public records obtained under
official pledges of confidentiality may be
denied where a clear pledge has been made in
order to obtain the information, where the
pledge was necessary to obtain the
information, and where the custodian
determines that the harm to the public
interest resulting from inspection would
outweigh the public interest in full access
to public records.

Custodian must permit inspection of
information submitted under an official
pledge of confidentiality where the official
or agency had specific statutory authority to
require its submission.

Authority of Department of Natural Resources
to obtain information under Sections 144.55,
144.09, 144.555 and 144.33, Stats.,
discussed.

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Opinion, stated in 58 OAG 67, that a member
of the public does not have to show a legal
interest in a public record  or document
which he seeks to inspect was not
affected by State ex rel. Journal
Company v. County Court (1969),
43 Wis.2d 297,
168 N.W.2d 836.

Right to inspect Department of Natural
Resources records is not absolute, but is
subject to balancing of public interests.

L. P. VOIGT, Secretary,
Department of Natural Resources

You have requested by opinion regarding
whether or not the Department of Natural
Resources must grant access to certain
types of information obtained by the
department in its pollution control program.

Your letter states that much of this
information was given to the department in
confidence and that assurances have been
given from time to time by department staff
members that the confidence would not be
breached. Your letter sets forth the
following examples of that information:

1.   Production, cost of treatment, profit
     and loss, and raw materials records
     obtained through personal interviews.

     Assurances in writing were given by
     staff personnel that this information
     would be used only for a general study
     not identified with specific mills and
     would be confidential.
 

2.   Cooperative mill waste surveys
     containing a description of production
     processes employed, major pieces of
     treatment equipment, production
     tonnages, waste water flows
     and solids, BOD and PH data.

     Assurances of confidentiality have
     been orally given from time to
     time by staff members.

3.   Records relating to approvals under
     section 144.555 of the Wisconsin
     Statutes.

4.   Industrial waste census forms containing
     productive capacity, raw materials
     information and waste volume
     concentration and point of
     discharge information.

     No assurances of confidentiality were
     given but concern has been expressed
     by some of the companies supplying
     this information.

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5.   Detailed expenditure information
     relative to installations of water
     pollution abatement equipment.

6.   Material which at the time of submission
     was not regarded as confidential but
     which now may be regarded as
     confidential and prejudicial to a
     competitive position to the person
     submitting the information.

Your letter goes on to state that the
Department occasionally receives requests
by individuals or companies to examine your
files, and sets forth the following examples
of the types of requests or demands received:

1.   A member of the general public comes
     into our offices and asks permission to
     look at our files regarding a certain
     company or a group of companies.

2.   A representative of the news media comes
     into our offices and asks permission to
     look at our files regarding a certain
     company or a group of companies.

3.   An employe or consulting engineer of one
     company requests permission to see the
     files of other companies.

4.   The files of one or more companies are
     subpoenaed in connection with an
     administrative hearing or court
     proceeding.

Finally, you ask in which of the above
combinations must the Department open the
files, and if the records are subpoenaed,
would the Department have a reasonable legal
basis for resisting the subpoena in some or
all of the possible categories?

LIMITATIONS ON RIGHT TO
INSPECT PUBLIC RECORDS

Section 19.21 of the Wisconsin Statutes
(formerly Section 18.01) deals specifically
with the custody of public records.
 

It is clear that the records containing the
information you mention are public records
under Section 19.21(1).

International Union v. Gooding (1947),
251 Wis. 362,
29 N.W.2d 730;

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State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 470.

Section 19.21(2) provides that any person
shall have full access to all public records
for purposes of examination and copying.

The public right of full access is, however,
qualified in three respects:

1.   The right to inspect is subject to such
     reasonable regulations with respect to
     hours, procedures, etc., that the
     custodian may prescribe to limit
     unreasonable interference with the
     ordinary operations of his office.

2.   The right is limited or denied in some
     instance by express statutory provision.

3.   The custodian may refuse inspection of
     certain records in instances where he
     believes the public interest in
     nondisclosure outweighs the strong
     public interest in having full public
     access to any public records.

     State ex rel. Youmans v. Owens, supra.

In such event, the custodian must give as
concrete an  explanation as is possible for
nondisclosure to the person requesting
inspection of the record.

Beckon v. Emery (1967),
36 Wis.2d 510,
153 N.W.2d 501.

If the person seeking inspection is
unsatisfied by such explanation,
his remedy is in a mandamus action
in circuit court.

State ex rel. Youmans v. Owens,
supra, at p. 682.

The situations in which the custodian may
deny access to public records (where he
is not authorized to do so by express
statutory provision) are not specifically
set down in the cases cited above.

The court has stated, however, that Section
19.21, Stats., will be construed in pari
materia with Section 66.77, Stats.,
formerly Section 14.90, the Wisconsin open
meeting law, and that the policy guidelines
for holding closed meetings set forth in
Section 66.77(3), Stats., will be applicable
to the question of confidentiality of records
under Section 19.21.

Youmans case, supra at pp. 684-685.

It does not appear, however, that any of the
standards of Section 66.77(3), are applicable
to the examples you set forth in your letter.

The court in the Youmans case did point
out that other common law exceptions
remain to the public right of full
access to public records.

One exception specifically mentioned was
the situation where information had been
obtained by a public agency on the
promise that it would be kept confidential
and not be disclosed.

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The court cited the case of
City & County of San Francisco v. Superior
Court (1951), 38 Cal. 2d 156, 238 Pac. 2d
581, as an illustration of this exception,
stating that:

     . . .There the records sought to be
     inspected contained information
     which had been gathered from
     employers under the pledge
     that it would be kept confidential.

     To have permitted inspection would not
     only have constituted a breach of this
     pledge, but would have seriously
     handicapped governmental agencies in
     gathering information in the future
     under a similar pledge because of
     distrust that the pledge would
     not be observed.

Youmans, supra, at pp. 681-682.

The City & County of San Francisco case
involved a commission which was charged
with the responsibility of setting a wage
scale for municipal employees in accord
with the generally prevailing wage scales.

In order to determine this wage scale,
the commission obtained data from 200
private employers in the vicinity.

Representatives of the municipal employees
sought inspection of the data accumulated
from the private employers.

The court found that the data from private
employers was obtained on the promise that it
would be kept confidential, that it had been
given voluntarily to the commission, and that
the commission had no power to obtain the
data other than on a voluntary basis.

The California Supreme Court held that under
these circumstances, the public interest
would be harmed by disclosure.

The decision was based upon the fact that the
information could not have been obtained
except upon the express condition and pledge
that the identity of the source of the
material would be treated as confidential.

The public interest would suffer if the
government broke its pledge of
confidentiality, because public officials
would be unable to obtain such
information in the future.

In accord is Norwegian Nitrogen Product Co.
v. U.S. (1933), 288 U.S. 294,
53 S.Ct. 360, 77 L.ed. 796.

I am of the opinion that the situation
described in the City and County of San
Francisco case, where information was
obtained under official pledge of
confidentiality, and where the information
could not otherwise have been obtained by the
governmental agency, constitutes an exception
under Section 19.21, Stats., where the
custodian of public records containing such
information may deny inspection of those
records in the first instance.

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I would suggest that the following criteria
be considered, however, in deciding whether
a particular pledge of confidentiality
comes within the exception, and will,
therefore, hold up in court.

First, there must have been a clear pledge
made. Second, the pledge should have been
made in order to obtain the information.

Third, the pledge must have been necessary
to obtain the information.

Finally, even if a pledge of confidentiality
fulfills these criteria, thus making the
record containing the information obtained
clearly within the exception, the custodian
must still make an additional determination
in each instance that the harm to the public
interest that would result from permitting
inspection outweighs the great public
interest in full inspection
of public  records.

The general requirement of full public access
creates a strong presumption in favor of
permitting inspection, even though the
release of information is irreversible,
while the denial of access is always subject
to the review of the circuit court.

This presumption is sound because,
as a practical matter, few private citizens
have the resources available to bring the
necessary legal action to compel release
of information when access has been
denied by the custodian.

Applying these criteria to the examples
stated in your letter, I am of the opinion
that none of the examples come within
the exception in the first instance.

Examples 3 through 5 do not concern any
pledges of confidentiality at all.

Example 6 does not appear to either, but even
if some pledges have been made recently, it
is clear that no pledge was given to obtain
the information at the time the department
first acquired it.

Examples 1 and 2 do appear to involve
situations where clear pledges of
confidentiality may have been given.
 

However, they also involve situations where
the agency has specific statutory authority
to require the production of the information
it seeks, and, therefore, do not meet the
third criteria that the pledge of
confidentiality must be necessary
to secure the information.

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For example, Section 144.555, Stats.,
referred to in Example 3 of your letter
specifically requires an industry intending
to discharge new or increased waste to submit
a report to the department before work is
commenced:

     Any industry which intends to increase
     the quantity of industrial wastes
     discharging to the surface waters of
     the state or to discharge a new waste to
     said waters or which intends to alter an
     existing outlet or build a new outlet
     for industrial wastes shall, before
     starting such work, advise the
     department . . . in writing concerning
     its intentions and supply the department
     with a general report describing steps
     which shall be taken to protect the
     surface waters of the state against
     new pollution or an increase in
     existing pollution.

     The report shall be submitted not less
     than 30 days before approval is desired,
     and no construction work shall be
     started until the report
     has been approved.
 

The Department also has specific authority to
acquire from industries and other owners
whatever information regarding existing
facilities and discharges that is
necessary for the Department to
perform its regulatory duties.

The Department can require the keeping of
records and the submission of information
under Sections 144.55 and 144.09, Stats.:

144.55 Visitorial powers of department.

     Every owner of an industrial
     establishment shall furnish
     to the department all information
     required by it in the discharge of
     its duties under Section 144.025(2).

     Any member of the natural resources
     board or any employe of the department
     may enter any industrial establishment
     for the purpose of collecting such
     information, and no owner of an
     industrial establishment shall
     refuse to admit such member
     or employe.

     The department shall make such
     inspections at frequent intervals.

     The secretary and all members of the
     board shall have power for all purposes
     falling within the department's
     jurisdiction to administer oaths,
     issue subpoenas, compel the attendance
     of witnesses and the production of
     necessary or essential data.

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144.09 Enforcement.

     Records required by the department shall
     be kept by the owners and the department
     supplied with certified copies and such
     other information as it may require.

     Agents of the department may enter
     buildings, structures and premises of
     owners supplying the public or
     industrial plants with water, ice,
     sewerage systems, sewage or refuse
     disposal service and private properties
     to collect samples, records and
     information, and to ascertain
     if the rules and orders of the
     department are complied with.

     The department of justice shall assist
     in the enforcement of this chapter.

Sections 144.55 and 144.09, Stats.,
contain no specific provision regarding
confidentiality of the information received
pursuant to the statutes.

This contrasts with Section 144.33, Stats.,
which does provide that:

144.33 Confidentiality of records.

     Any records or other information
     furnished to or obtained by the
     department in the administration
     of Sections 144.30 to 144.46, which
     records or information, as certified by
     the owner or operator, relate to
     production or sales figures or to
     processes or production unique to the
     owner or operator or which would tend to
     affect adversely the competitive
     position of such owner or operator,
     shall be only for the confidential use
     of the department in the administration
     of Sections 144.30 to 144.46, unless
     such owner or operator expressly agrees
     to their publication or availability to
     the general public.

     Nothing herein shall prevent the use of
     such records or information by the
     department in compiling or publishing
     analyses or summaries relating to the
     general condition of the outdoor
     atmosphere, if such analyses or
     summaries do not identify any owner
     or operator or reveal any information
     otherwise confidential under this
     section.
 

Section 144.33, Stats., was enacted by
Chapter 83, Laws of 1967, which gave
the Department of Natural Resources
responsibility for controlling
air pollution and solid waste.

Section 144.33 applies only to information
gathered in the performance of the
department's air pollution control and
solid waste management functions under
Sections 144.30 through 144.45.

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In contrast, Sections 144.55 and 144.09 do
not contain these sorts of explicit
provisions regarding confidentiality,
and are governed instead by the general
public records statute, Section 19.21, Stats.
 

It is my opinion that Sections 144.55 and
144.09, Stats., give the department full
authority to obtain any information necessary
to carry out its duties under Chapter 144
(except for regulation of air pollution and
solid waste under Sections 144.30 through
144.35, Stats.).

This presumably includes all the information
described in your letter, assuming that
the department would not acquire any
information that it does not need to
carry out its regulatory functions.

I am of the opinion that the department must
permit inspection of information submitted
under a pledge of confidentiality where the
information could have been obtained by the
department pursuant to its statutory
authority, and that the pledge of
confidentiality must be considered as invalid
and not binding to the officer or agency.

To do otherwise would permit public officials
to effectively waive the public right to know
at their own discretion by making pledges of
confidentiality when they are not necessary
for the official to obtain the information,
which would be clearly in violation of the
public policy of Section 19.21, Stats.

Even if the pledge of confidentiality was
made upon the mistaken belief that it was
necessary, it would be against public policy
to require that the pledge be kept.

After all, the persons who submitted the
information in reliance of such a pledge have
no grounds for complaint because they would
have been required to submit the information
under Sections 144.55 and 144.09 Stats.,
anyway.

WHO MAY INSPECT

Your letter also sets forth three different
examples of persons who might seek inspection
under Section 19.21, Stats.:

(1)  a member of the general public,
(2)  a representative of the news media, or
(3)  an employee or consultant of a
     competition.
 

In a formal opinion to E. H. Jorris, State
Health Officer, dated July 16, 1969, I stated
my opinion that the common-law rule of public
records, which requires a private person
seeking inspection of a public record or
document to show first a special, legal
interest in the record or document,
was not applicable in Wisconsin.

58 OAG 67.

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Stated positively, I was of the opinion that
any member of the public, regardless of his
motives, has a right to inspect any public
record, subject to the three limitations
stated at the beginning of this opinion.

58 OAG at 71.

Twenty days prior to the issuance of that
opinion, the Wisconsin Supreme Court decided
the case of State ex rel. Journal Co. County
Court (1969), 43 Wis.2d 297, 168 N.W.2d 836,
which was not discussed in my opinion
to Mr. Jorris.

The Journal Co. case turned on the question
of whether there was an absolute right of
inspection of a court decision, a right not
subject to any balancing of the public
interest under the Youmans case.

I have found no particular statute, either
predating Section 19.21, Stats., or enacted
subsequent to it, that would give the public
an absolute right of inspection of the
department's records such as was found
to exist in the Journal Co. case under
Section 59.14, Stats.

On the other hand, I find no indication in
the Journal Co. case that the Wisconsin
Supreme Court intended to narrow its previous
line of decisions (discussed in 58 OAG 67) to
the effect that a member of the public has:

     . . . an absolute right to inspect a
     public document in the absence of
     specifically stated sufficient
     reasons to the contrary.

Beckon v. Emery, supra, at p. 518.

It is clear under that the Youmans case that
there is no distinction between the three
examples of persons you cite in your letter,
in that they are all to be considered members
of the general public seeking inspection of
a public record, and are all entitled to
inspection subject to the limitations
previously discussed.

RESPONSE TO SUBPOENA

Your letter also asks my opinion as to
how the department should respond to a
subpoena duces tecum issued by a court
or administrative agency.

This matter was fully discussed in
57 OAG 138, and I am in complete
agreement with my predecessor
where he states at 57 OAG 142, that:

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     I conclude that there are a number of
     good reasons why public records should
     not be subpoenaed from their proper
     depository for use in legal proceedings.

     They may be lost or destroyed.

     Until such time as they are returned
     they are not available for public
     inspection.

     Lack of such public records may disrupt
     the orderly flow of business of the
     public agency involved.

     Any person may inspect the public
     records and obtain certified copies.

     Any attorney who desires to prove the
     contents  of a public record may do so
     by obtaining a certified copy in advance
     of the that date.

     It is not proper for an attorney, who
     fails to prepare his case in advance by
     obtaining such copies, to attempt to
     obtain original public records at the
     last minute by subpoena duces tecum.

     This is an unwarranted imposition
     upon the public officer involved.

     The courts refuse to allow this
     where certified copies could
     be obtained instead.

     Whenever you are served with such
     subpoena duces tecum, they should be
     promptly brought to our attention.

     We will move to quash such subpoenas
     and ask for costs where appropriate.
 

RWW:SMS

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