61 Op. Att'y Gen. 12 (1972)


 
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Wisconsin Attorney General Opinions

20 January 1972

Public Records
State Health Officer

The right to inspection
and copying of public records in
decentralized offices discussed.

GEORGE H. HANDY, M.D., State Health Officer

You have requested my opinion on two
questions relating to the right of the public
to inspect and copy documents relating to
division surveys.


 
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1.   Can the Division of Health, in its
     central and various district
     offices,refuse to allow a member of the
     public, including members of the news
     media, access to files containing
     information relating to deficiencies
     found on official survey visits to
     health care facilities for which the
     Division serves as the regulatory agency
     prior to receipt of the official
     survey report by the facility?

2.   In relation to the above question, does
     the Division, in its central and various
     district offices, when it is
     contemplated that enforcement action is
     to be taken by the central office on a
     facility following an official survey,
     have the right to be allowed to

     (a)  at that time not treat the report
          as a file document,

     (b)  be allowed to retain the survey
          report in their desk or some other
          appropriate area removed from the
          file, and

     (c)  not file the report or,

     (d)  not make it available to a second
          party until after enforcement
          action has been decided upon
          and such action taken by the
          central office?

I am enclosing a copy of an opinion to
the Secretary of the Department of
Transportation, dated the 31st day of
December, 1971, in which certain limitations
on the right of public inspection and
copying are discussed in depth.

On the basis of the conclusions set forth in
that opinion, and by reason of the provisions
of secs. 16.80 12)(a) and 19.21(1) and (2),
Stats., my answer to your second question
is that:

1.   The documents referred to are public
     records in the lawful possession or
     control of the legal custodial
     officer or his deputies.

     For purposes of custody and of
     inspection and copying, there is no
     special significance to the fact of
     filing or placing a document in a "file"
     Lawful possession and control of a
     "public record" is all that is
     material, and public records include
     all those items set forth in
     Section 16.80(2)(a), Stats.

     The provisions of Section 19.21(1) and
     19.21(2), Stats., cannot be circumvented
     by concealing or destroying public
     records.

See Sections 19.21(4) and 946.72(1), Stats.

2.   The right to inspection and copying must
     be made available under reasonable
     conditions to any person subject to the
     limitation that the custodial officer
     can withhold specific documents from
     inspection and copying where he
     determines that the public interest in
     nondisclosure outweighs the strong
     public interest in full public access.

     Where inspection is to be denied,
     specific relevant reasons must
     be given as to each document.


 
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3.   Where the documents involve a potential
     criminal prosecution, or an existing
     investigation or pending licensing or
     disciplinary proceeding, there may be
     sufficient reasons to withhold
     inspection.

     The determination is for the custodian
     or his deputy, if authorized, and it
     would be improper for me to state
     that any or all of the documents
     relating to any specific investigation
     you now have should be withheld,
     since I have neither seen the
     documents nor been advised of
     other material circumstances.

Your first question embodies
an erroneous assumption.

The Division of Health is not the responsible
legal custodian of public records received by
the agency or its officers or employes.

Section 19.21(1), Stats., makes each officer
of the state the legal custodian of the
records set forth therein, and he is the
custodian of those public records which
are in the lawful possession of
himself or his deputies.

Under Section 19.21(2), Stats., the duty to
permit inspection and copying is on the
custodial officer subject to such orders or
regulations as the custodian provides.

The Department of Health and Social Services
is headed by a secretary and by reason of
Section 889.08(2), Stats., the secretary or
his deputy are custodians of all of the
records in their agency.

That section also provides that:

     . . .In agencies having divisions, the
     heads of divisions are also legal
     custodians of the files and
     records of their division. . . .
 

Therefore, you, as State Health Officer,
are the legal custodian of the
records of your division.

Where the legal custodian of a division has
not delegated authority to employes in his
home office or in field offices, I am of the
opinion that, since Section 19.21(2), Stats.,
provides that the custodial officer shall
grant access to public records for purposes
of inspection or copying, he has the right to
view the public record before permitting any
person to inspect or copy the same.


 
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This is necessarily true since,
under the holding in

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672, 682,
137 N.W.2d 470,

the custodial officer has the
duty to deny inspection:

     . . . If he determines that permitting
     inspection would result in harm to the
     public interest which outweighs any
     benefit that would result from
     granting inspection, . . .

In large agencies or divisions, especially
where there are outlying offices or where
the responsible custodial officer is not
readily available, delegation of
authority is necessary.

In most instances, inspection should be
granted by the custodial officer, or his
delegate, at the place where the document is,
and if delegation is present the delegate
should permit inspection or deny the same
giving specific reasons.

Even where delegation is present, the
responsible custodial officer can by
regulation or specific direction in each case
provide that he shall be promptly notified in
important instances and require that the
document be delivered to him so that he can
determine whether access should be withheld.

I have reviewed the administrative procedures
you have forwarded and with respect to 1 and
2, which relate to access to public records,
make the following observations:

I am in agreement with the provisions
of 1 and 2(a) (b) (c) (d).

With respect to the second (a) under 2 (which
relates to health care facility records), I
agree that identification may be required,
but would not agree that the person seeking
inspection must or should state a reason
for inspection.

With respect to (b), I question whether a
person must give the name of any person
they represent, and suggest that inspection
probably cannot be limited to a specific file
requested.

Subsection (f) is also suspect in those
respects. However, it is a reporting
provision and the information
could be forwarded if available.

Subsection (c) is void insofar
as it prohibits copying.

After you have considered this opinion, you
may wish to provide further regulations as to
who is the responsible legal custodian and
any chain of delegation, together with
provisions for prompt notification of the
responsible legal custodian in special cases.


 
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